partly out of wantonness and partly out of worse After several years of retirement and physical He was probably not his equal at the American bar in his life-time. So fully equipped was he always in the learning necessary to his case, whether legal or scientific, that he seemed to have spent years in the study of the particular case. He did himself great honor in his short career on the bench, his opinions being distinguished for sound sense, learning and elegance of style; but the occupation of the bench was distasteful to him—the harnessing of Pegasus to a cart. He was always connected with the greatest causes, many of them of historic celebrity, like the Beecher and Guiteau cases. His printed argument in the Parish will case and several of his judicial opinions contain passages hardly surpassed in the English language for force, beauty and logical mastery. So has departed the second of the three greatest advocates of our State who contested the Beecher case. There have always been men in every human occupation who were peculiarly the admiration of their brethren in the same occupation, and it has always seemed to us that Porter was the lawyers' ideal advocate. NOTES OF CASES. IN Gandolfo ... Hartman, District of Califor- * made in this country after Texas declared itself independent, but before its independence had been acknowledged by the United States, whereby the complainants agreed to furnish, and under which they did furnish, money to a general in the Texan army, to enable him to raise and equip troops to be employed against Mexico. But the principle governing the case is, in my opinion, equally applicable here, where it is sought to enforce an agreement made contrary to the public policy of the govern ment, in contravention of one of its treaties, and in violation of a principle embodied in its Constitution. Such a contract is absolutely void, and should not be enforced in any court, certainly not in a court of equity of the United States." reproduced, or to render one temporarily insensible to pain by anæsthetics, it would not be necessary in reply to call other experts to give opinions to the contrary. The direct facts might be testified to by any person who knew them. It was held in Cottrill v. Myrick, 12 Me. 222, that one familiar with fish might testify to his opinion as to the ability of fish to overcome particular obstructions in rivers. If such a witness were to testify that in his opinion salmon could not overleap certain dams or falls, can it be doubted that one who had seen them do it might be called in reply to testify to the fact? In Reeve v. Dennett, 145 Mass. 23, the plaintiff's evidence tended to show that a certain compound was worthless for the purpose of allaying pain in filling teeth, and it was held competent to meet this evidence by calling witnesses to testify that operations upon their own teeth when this compound was used, were practically painless. In the trial of Palmer, evidence tending to show that strychnine could not be discovered in a body after death was met without objection by evidence that it had been done; and the experiments were stated. The principal objections which are suggested to the testimony offered by the defendants in the present case are that it would have introduced another issue than the one immediately on trial, and would have called upon the government to meet statements of facts which it could not have anticipated. The answer is that the government itself presented the issue that no woman could have done this thing herself, and that the defendants, by the testimony which they offered in reply, intro In Commonwealth v. Leach, Supreme Judicial Court of Massachusetts, February 27, 1892, a trial for abortion, where the theory of the prosecution was that the death was caused by the introduction of an instrument into the uterus, and evidence was offered by physicians tending to prove that it was impossible for the deceased to insert the one used herself, and that it would be impossible for any woman unaided to insert one into her own uterus, it was held competent for defendants to show by a witness that the witness had, unaided, inserted such one into her own uterus. The court said: "Had the physicians testified merely that in their opinion the deceased could not have done this thing herself, such opinion might have rested on reasons applicable only to that particular woman; but they went further, and made their testimony applicable to all women, or at least to women in general. The ques-duced no new or collateral issue, but merely sought tion then arises, how may such testimony be met? When an expert witness testifies to a matter of opinion, it has often been declared that it is competent for him to give the reasons upon which his opinion is founded, and to state that it is the result of observations and experiments, in order to confirm his testimony. Lincoln v. Copper Co., 9 Allen, 181, 191, 192; Williams v. Taunton, 125 Mass. 34, 40; Eidt v. Cutter, 127 id. 522; Emerson v. GasLight Co., 6 Allen, 146; Sullivan v. Com., 93 Penn. St. 284, 296; Boyd v. State, 14 Lea, 161, 169–174; Smith v. State, 2 Ohio St. 513. If other experts are called on the other side, and testify to a contrary opinion, the same rule would allow them to state that their opinion also was the result of observation and experiments. But where the testimony to be met is the opinion of expert witnesses that it is impossible in the nature of things for a particular thing to be done, it is not necessary to rely on expert opinions to the contrary, if it can be shown as a matter of fact that the thing has been done. If, for example, expert witnesses were to testify that it would be impossible to propel a vessel by steam across the Atlantic ocean, or to navigate the air with balloons or flying-machines, or to propel cars by electricity, or to communicate with other persons at a long distance away by telegraph, or by spoken words, or to store up sounds in a machine or instrument so that long afterward they could be to meet the issue tendered by the government. Such testimony is relevant, because the government has made it so. It tends to negative the theory of the government on a material point. It is stated in Stephens Digest Evidence, article 50, that, where the opinion of an expert is deemed to be relevant to the issue, facts inconsistent with such opinion become relevant also. Without extending the decision beyond what is involved in the particular case before us, we are of opinion that, where witnesses who are qualified as experts have been called by the government, and have been allowed to testify in chief, that in their opinion, it is impossible for anybody to do a particular thing, and where this opinion is upon a matter material to the issue on trial, their testimony may be met by calling witnesses in defense to testify that to their own knowledge as a matter of fact the thing has been done, and that they have done it themselves." Knowlton, J., dissenting. COLLATERAL INHERITANCE TAX IN CON- SECTI ECTION 11 of chapter 713, Laws of 1887, reads as follows: "Whenever any foreign executor or administrator shall assign or transfer any stocks or loans in this State, standing in the name of a decedent or in trust This language does not appear to cast any absolute It is to the first paragraph of the first section of the act in question that reference must be made to discover what property is subjected to an inheritance tax. The amendment of 1891 has not altered the statute for the purposes of the present inquiry. The section referred to reads as follows: "After the passage of this act all property which shall pass by will or by the intestate laws of this State, from any person who may die seized or possessed of the same while a resident of this State, or if such decedent was not a resident of this State at time of death, which property, or any part thereof, shall be within this State," etc. The English statutes regulating taxes on successions construed in the light of the maxim "mobilia sequuntur personam," were held not to include the personal property of foreign decedents. Dos Passos Col. Iuher. Tax, 83, et seq. When the original Collateral Inheritance Tax Act of New York (Laws 1885, chap. 483) came to be reviewed in connection with the estates of non-resident decedents, the Court of Appeals, applying this maxim which they declared to be "a fiction of law, but a fiction which must prevail unless there is something in the policy of the statute or its language which shows a different legislative intent," decided that the act did not extend to the estates of non-resident decedents. To arrive at this conclusion it was necessary to give a rather strained construction to the obscure language of the statute, and to declare virtually void, or of the most limited application, portions of the enactment which seemed to disclose such a legislative intent as the court had declared would suffice to do away with the fiction altogether. Not only had the Supreme Court, as well as the surrogate, committed themselves already to the opposite view in that very case, but even in the Court of Appeals the decision was by a bare majority, Judges Danforth and Finch dissenting and Chief Justice Ruger casting no vote. Under the circumstances it could hardly be said that the construction of that act was settled. But the Leg islature, to obviate all doubts and while the Euston Case was still pending, in 1887 amended the statute so as to read as above quoted. Unfortunately the amend 44 ment simply consisted of an interpolation of several words, italicized in the above quotation. The Legislature thus succeeded in so completely obscuring its meaning that whatever construction be ultimately given to the act must of necessity produce confusion and inconsistency. In considering this section with respect to the liability of corporations under the eleventh section, it is best to suppose three hypothetical cases and to consider each separately. (1) Where the deceased was a resident of this State, but the corporation which issued the stock is foreign, and the stock certificate is not within this State. (2) Where the deceased was a non-resident, and the corporation which issued the stock is foreign, but the stock certificate is within this State. (3) Where the deceased was a non-resident, and the stock certificate is not within this State, but the corporation which issued the stock is domestic. (1) Where the deceased was a resident of this State, but the corporation which issued the stock is foreign, and the stock certificate is not within this State: The first doubt which arises in the discussion of this case is what the expression "foreign executor or administrator," as used in the eleventh section, meanswhether it is intended to include all executors and administrators whose authority was not obtained by the laws of this State, or simply those whose duty it is to administer the estates of non-resident decedents. There would have been no question as to the significance of this expression-that it included all foreign executors and administrators--but for the dictum of the Court of Appeals in the Romaine Case, already quoted: ' Corporations can transfer stock standing upon their books in the name of a non-resident decedent only at their peril until the tax thereon is paid." This would seem to infer that all other stocks standing upon the corporation's books could be transferred without examination, although the person demanding the transfer derived his authority from the laws of another State, and was in nowise subject to the jurisdiction of this State. If this is so the case here supposed could not arise, and this discussion would be misplaced. But the Court of Appeals in passing upon an exactly similar section in the act of 1885, while holding that act not to include non-resident decedents, did not declare the eleventh section void, though they greatly restricted its application. "There may be cases," they said, "where all the executors or administrators are non-residents of the State, and therefore not within the jurisdiction of our courts, and such executors or administrators may assign or transfer stocks or bonds in this State, and provision is here made for the collection of the tax in such cases." Matter of Euston, 113 N. Y. 180. This seems to be the true object of the section, and in the Romaine Case the judges were not deciding any question which dealt with resident decedents. We shall assume here that the eleventh section extends to all foreign executors and administrators, whether of residents or non-residents. We now return to a consideration of the first section, as amended by the Laws of 1887. The amendment has made some points clear. Thus there can be no doubt that under the amended statute all real property situate within the State, but owned by foreign decedents, is subject to the tax. Nor can it be ques tioned that all personalty actually within the State, passing by the will of a foreign decedent, is taxable under the statute. But whether personal property of foreign intestates, or personal property situated in other States but belonging to resident decedents comes within its provisions, is by no means so plain. The first of these questions has been answered in the affirmative by the Second Division of the Court of Appeals. Matter of Romaine, 127 N. Y. 80. The conten tion was that the statute required all intestate property taxable under its provisions to pass "by the intes tate laws of this State;" that personal property of foreign intestates, though territorially here, devolved according to the intestate laws which prevailed in the State of the decedent's domicile, and that consequently such property was exempt from the inheritance tax. To this unreasonable discrimination the court very properly refused its sanction. But in order to reach this sound conclusion the court deemed it necessary to adopt a construction of the act which, in view of the phrasing, method of amendment and apparent intention of the Legislature, seems scarcely more natural than that given to its predecessor of 1885. They divided the first paragraph of the first section into two distinct clauses, reading it as if written: (1) All prop-| erty which shall pass by will or by the intestate laws of this State from any person who may die seized or possessed of the same while a resident of this State, or (2) all property which, if such decedent was not a resident of this State at the time of death, or any part thereof, shall be within this State, etc. By this divisjon they effectually disposed of the discrimination between non-resident testators and intestates, but they likewise prevented the application to the first clause of the qualifying phrase "which shall be within this State." and thus made that first clause appear to include all property (at least all personalty) of resident decedents whether within or without this State. Indeed since by such a reading of the statute the fact of its being within the State is made that peculiar feature of personalty belonging to non-residents which brings the same within purview of the statute, the conclusion would seem to be inevitable that the property referred to in the first clause was all property, wherever its actual situs, provided such property passed from persons who died possessed of the same while residents of this State. Yet there is no good reason to suppose that the Legislature's purpose was to limit the qualify. ing phrase "which shall be within this State" to the property of non-residents. That phrase was in the statute of 1885, which, as we have seen, was held to exclude non-residents. It was construed by the Court of Appeals in the Euston Case to be part of a subsequent sentence, not qualifying the class of property to be taxed at all. But the amendment, made as suggested in the Romaine Case, probably because of the "litigation then pending, and with the intention of removing the doubt caused thereby," cured this difficulty by the repetition of the words "which shall be" before the words "transferred by deed," etc. By this device the full force of the phrase in question was left to be applied to what precedes, and the sole remaining issue is whether it unites with the whole preceding clause or only with that part which was added in 1887. If the construction now placed upon the act be the true one, we are treated to the singular spectacle of a statute which in two successive clauses, most intimately connected, affirms and abrogates the same principle-affirms for the purpose of taxing the property of residents the doctrine that personalty follows the domicile-abrogates that doctrine for the purpose of laying a similar tax on the property of non-residents! A system of swelling the public revenue at the expense of such glaring inconsistency in the public laws, while it may not be positively unconstitutional, is certainly not compatible with a proper and easy administration of justice, nor creditable to the intelligence of legislators. Statutes should not be construed so as to produce such heterogeneous results excepting in the last extremity. In Hoyt v. Commissioner of Taxes, 23 N. Y. 228, it is said: "In a well-adjusted system of taxation a fundamental requisite is that it be harmonious. But harmony does not exist unless the taxing power is exerted with reference exclusively either to the situs of the property or to the residence of the owner. Both rules cannot obtain unless we impute inconsistency to the law and oppression to the taxing power. Whichever of these results is the true one, whichever we find to be founded in the justice and in the reason of the thing, it necessarily excludes the other, because we ought to suppose, indeed we are bound to assume, that other States and governments have adopted the same rule. If then, proceeding on the true principles of taxation, we subject to its burdens all goods and chattels actually within our jurisdiction, without regard to the owner's domicile, it must be understood that the same rule prevails elsewhere. If we also proceed on the opposite rule and impose the tax on account of the domicile, without regard to the actual situs, while the same property is taxed in another sovereignty by reason of its situs there, we necessarily subject the citizen to a double burden of taxation. For this no sound reason can be given." This whole passage is cited by Surrogate Ransom in the Matter of the Estate of Swift, N. Y. Law Journal, Sat., Nov. 21, 1891, where the principles above set forth are applied, and the statute is declared not to extend to the property of resident decedents, whereof the actual situs is without the State. Whether, when the case arises, the Court of Appeals will decide in conformity with this view is of course unknown But considering the construction which the Second Division has placed upon the statute, it seems improbable. Whatever shall be the ultimate decision on this point it will govern the hypothetical case which opened this discussion. For by that case every thing is supposed to be without the jurisdiction save only the decedent's domicile. And the statute manifestly supposes some actual situs, other than the owner's domicile, to stocks and bouds as well as other personalty, manifestly embraces not only all other personalty, but as the Court of Appeals has remarked in the Romaine Case, likewise "evidences of debt." But the discussion of this matter we have reserved for the second case supposed, which we shall now proceed to consider. (2) Where the deceased was a non-resident, and the corporation which issued the stock is foreign, but the stock certificate is within the State: The principal question arising here is as to where the actual situs of stocks (or bonds) for the purpose of the collateral inheritance tax must be taken to be. That intangible property such as stocks and debts cannot, strictly speaking, have any actual situs is too evident to admit of argument. "In fact," says Story (Coufl. Laws, § 399), "a debt is not a corpus capable of local position, but merely a jus incorporale." But if there is any one place which more than another may be considered the situs of mere intangible rights, in the absence of a conventional regulation, that place is the person of him in whom such rights are vested. In this respect intangible property differs very materially from other personalty. The latter is said to follow the person of its owner by virtue of a fiction of law founded, as Denio, J., in Parsons v. Lyman, 20 N. Y. 112, declares, "in international comity," and subject to be changed "by the political government of the State whenever a change becomes desirable." But there is no need of invoking any such fiction to make intangible rights follow the person in whom alone they exist. The statute which severs personalty from the owner, in the case of tangible property, destroys a fiction; in the case of intangible property, invents one. It cannot be denied however that Legislatures have an equal right to do either. "The State may give the shares of stock held by individual stockholders a special or particular situs for the purposes of taxation, and may provide special modes for the collection of the tax levied thereon." 59 Md. 185; and see Cook Stock & Stockh., §§ 564-566. * * The truth is it has The "The that the stocks and bonds were liable to the succession (3) Where the deceased was a non-resident, and the stock certificate is not within this State, but the corporation which issued the stock is domestic: This case, depending upon the same principles as the last, has already been largely discussed. It only remains to consider whether the act may be construed as establishing the situs of stock, for the purpose of an inheritance tax, at the place of the corporate residence. For as we have seen the act has a double relation to intangible property, not only subjecting it to the tax but fixing its situs for the purpose of the tax. But we have also seen that the act has been construed as establishing the situs of stocks, for that purpose, at the place where the certificate is found. It would seem impossible that such property should have two actual situses for the same purpose. A construction of that nature would give rise to double taxation and infringe the principles set forth in the passage quoted above from the case of Hoyt v. Commissioner. "The courts do their utmost to prevent double taxation, and will construe a taxation statute so as to avoid such a result, and sometimes even in opposition to the plain words of the statute itself." Cook Stocks & Stockh. 623, and cases cited. E. H. BLANC. NATIONAL BANKS-INDICTMENT-USURY. STATE V. FIRST NAT. BANK OF CLARK. A National bank may be criminally punished by a State for usury. RE RROR to Circuit Court,;Clark county. Conviction of the First National Bank of Clark, S. D., for tak ing usury. O. F. Woodruff, F. E. Strawder and F. G. Bohri, for plaintiff in error. Robert Dollard, Atty.-Gen., S. H. Elrod and E. P. Conser, State's Atty., for the State. KELLAM, P. J. The facts in this case are unimportant as there is presented the single legal question, is a National bank subject to indictment, trial and punishment for a violation of the State law which makes the receiving of a greater rate of interest than is allowed by law a misdemeanor? Plaintiff in error was so indicted and convicted, and alleges error in that the State court had no jurisdiction. At the outset it was stated by counsel that no adju dication had been found upon this precise question. The counsel for the State quoted, and to some extent relied upon, section 4, chapter 866 of the United States Statutes of 1888, providing "that all National banking associations established under the laws of the United States shall, for the purposes of all actions by or against them, real, personal or mixed, and all suits in equity, be deemed citizens of the States in which they are respectively located, and in such cases the Circuit and District Courts shall not have jurisdiction other than such as they would have in cases between individual citizens of the same State." But there is nothing in the language of this section to indicate that it refers to any other than civil actions and proceedings. Indeed it is clear that it refers only to such. It evi |