mittee that reported the completed draft of the instrument, and warmly advocated its adoption in the State convention of Pennsylvania. The fourth was a member of the convention of North Carolina that adopted the Constitution. The case was decided in 1795. The judges were unanimous. The tax was held not to be a direct tax. Each judge delivered a separate opinion. Their judgment was put on the ground indicated by Justice Chase, in the following extract from his opinion:

"It appears to me that a tax on carriages cannot be laid by the rule of apportionment without very great inequality and injustice. For example, suppose two States equal in census to pay eighty thousand dollars each by a tax on carriages of eight dollars on every carriage; and in one State there are one hundred carriages, and in the other one thousand. The owners of carriages in one State would pay ten times the tax of owners in the other. A, in one State, would pay for his carriage eight dollars; but B, in the other State, would pay for his carriage eighty dollars."

It was well held that where such evils would attend the apportionment of a tax, the Constitution could not have intended that an apportionment should be made. This view applies with even greater force to the tax in question in this case. Where the population is large and the incomes few and small, it would be intolerably oppressive.

The difference in the ability of communities, without reference to numbers, to pay any tax is forcibly remarked upon by McCulloh in his article on taxation in the Encyclopedia Brittanica, vol. 21 (old ed.), p. 75. Justice Chase said further, "that he would give no judicial opinion upon the subject, but that he was inclined to think that the direct taxes contemplated by the Constitution were only two-a capitation tax and a tax on land."

Iredell, J., said: "Perhaps a direct tax, in the sense of the Constitution, can mean nothing but a tax on something inseparably annexed to the soil. * * * A land or poll tax may be considered of this description. The latter is to be considered, particularly under the present Constitution, on account of the slaves in the Southern States, who give a ratio in the representation in the proportion of three to five."

Paterson, J., said: He never entertained a doubt "that the principal, he would not say the only objects contemplated by the Constitution as falling within the rule of apportionment, were a capitation tax and a tax on land." From these views the other judge expressed no dissent. "Ellsworth, the chief justice sworn into office that morning, not having heard the whole argument, declined taking part in the decision." 8 Wall. 545. Cushing, from ill health, did not sit in the case. It has been remarked that if they had been dissatisfied with the result, the question involved being so important, doubtless a reargument would have been had.

In Pacific Insurance Co. v. Soule, 7 Wall. 433, the taxes in question were upon the receipts of such companies from premiums and assessments, and upon all sums made or added, during the year, to their surplus or contingent funds. This court held unanimously that the taxes were not direct taxes and that they were valid.

In Veazie Bank v. Fenno, 8 Wall. 533, the tax which came under consideration was one of ten per cent upon the notes of State banks paid out by other banks, State or National. The same conclusions were reached by the court as in the case of The Pacific Insurance Co. v. Soule. Chief Justice Chase delivered the opinion of the court. In the course of his elaborate examination of the subject he said: "It may be rightly affirmed that in the practical construction of the Constitution by Congress, direct taxes have been limited to taxes on land and appurtenances and taxes on polls, or capitation taxes."

In Scholey v. Rew, 23 Wall. 331, the tax involved was a succession tax, imposed by the acts of Congress of June 30, 1864, and July 13, 1866. It was held that the tax was not a direct tax, and that it was constitutional and valid. In delivering the opinion of the court Mr. Justice Clifford, after remaking that the tax there in question was not a direct tax, said: "Instead of that it is plainly an excise tax or duty, authorized by section 1, article 8 of the Constitution, which vests the power in Congress to lay and collect taxes, duties, imposts and excises to pay the debts and provide for the common defense and public welfare." He said further: "Taxes on houses, lands, and other permanent real estate have always been deemed to be direct taxes, and capitation taxes, by the express words of the Constitution, are within the same category; but it has never been decided that any other legal exactions for the support of the Federal government fall within the condition that unless laid in proportion to numbers the assessment is invalid." All these cases are undistinguishable in principle from the case now before us, and they are decisive against the plaintiff in error. The question, what is a direct tax, is one exclusively in American jurisprudence. The text-writers of the country are in entire accord upon the subject.

Judge Story says all taxes are usually divided into two classes-those which are direct and those which are indirect- and that, "under the former denomination, are included taxes on land or real property, and under the latter taxes on consumption." 1 Const., § 950.

Chancellor Kent, speaking of the case of Hylton v. The United States, says: "The better opinion seemed to be that the direct taxes contemplated by the Constitution were only two, viz., a capitation or poll tax and a tax on land." 1 Comm. 257. See, also, Cooley on Taxation, p. 5, note 2; Pomeroy on Const. Law, 157; Sharswood's Bl. 308, note; Rawle on the Const. 30, and Sargeant on the Const. 305. We are not aware that any writer, since Hylton v. United States was decided, has expressed a view of the subject different from that of these authors.

Our conclusions are, that direct taxes, within the meaning of the Constitution, are only capitation taxes, as expressed in that instrument, and taxes on real estate; and that the tax of which the plaintiff in error complains is within the category of an excise or duty. Pom. Const. Law, 177; Pacific Ins. Co. v. Soule, and Scholey v. Rew, supra.

Against the considerations, in one scale, in favor of these propositions, what has been placed in the other, as a counterpoise? Our answer is, certainly nothing of such weight, in our judgment, as to require any special reply. The numerous citations from the writings of foreign political economists, made by the plaintiff in error, are sufficiently answered by Hamilton in his brief, before referred to.

The judgment of the Circuit Court must be affirmed, and it is so ordered.

the same, and that all actions for injuries to the person, whether the same do or do not instantaneously or otherwise result in death, shall survive to his executor or administrator, etc. It is held in that State that under these statutes an action lies to recover damages in favor of the personal representatives of a deceased party. Murphy v. New York & N. H. R. Co., 30 Conn. 184; Soule v. New York & N. H. R. Co., 24 id. 275. Held, that an action which is given by the statutes of Connecticut will lie in this State for the death of a person through the negligence of defendant in the State of Connecticut, and that such action can be brought by an administrator appointed by the courts of New York. The construction given a statute of another State by the courts of that State is controlling in the tribunals of this State. Jessup v. Carnegie, 80 N. Y. 441; Hunt v. Hunt, 72 id. 218. At common law, personal actions whether ex contractu or ex delicto are transitory (Bouv. L. Dic.) and may be brought anywhere and are governed by the lex fori. An action for assault committed in another State will lie here. Smith v. Bull, 17 Wend. 323. But the statutes here giving an action for damages resulting from culpable negligence do not apply where the injury was committed in another State or country unless the laws of such State are proved to be of a similar character. Whitford v. Panama R. Co., 23 N. Y. 465; Beach v. Bay State Steamb. Co., 30 Barb. 433; Crowley v. Panama R. Co., id. 99; McDonald v. Mallory, 77 N. Y. 547. It is not necessary that the statute should be precisely the same as the statute of this State; that it is similar is enough. The statute of Connecticut agrees in its main features with that of New York. The doctrine that an action will lie when the common law or the statutes of different States or countries correspond is sustained by numerous authorities. Mochazo v. Willes, 3 B. & Ad. 353; Melan v. Duke de Fitz James, 1 Bos. & P. 138; Mostyn v. Fabrigas, 1 Cowp. 161; Shipp v. McCraw, 2 Murph. (N. C.) 463; Wall v. Hoskins, 5 Iredell's Law (N. C.) 177; Stout v. Wood, 18 Blackf. 71. Cases cited as showing that an administrator appointed in one State cannot bring actions given by statute of another (Richardson v. N. Y. Cent. R. Co., 98 Mass. 85; Woodard v. Mich. So. R. Co., 10 Ohio St. 121; Needham v. Grand Tr. R. Co., 38 Vt. 295; Selma R. Co. v. Lacey, 43 Ga. 461; Marcy v. Marcy, 32 Conn. 308), held, not to be analogous. (2) The letters of the surrogate showing on their face that intestate left assets in his county are conclusive as to his authority to issue them. Roderigas v. East Riv. Sav. Inst., 63 N. Y. 460; Richardson v. West, 80 id. 139. (3) When interest was not added to the verdict upon trial but was added in the taxation of costs, held, that the question of the right and interest could only be raised by a motion to retax costs at the Special Term. It cannot be raised on appeal. Code Civ. Proc., §§ 1345, 1349. Where a clause is inserted in the judgment without authority, the proper remedy is by motion to correct the judgment and not by appeal. People v. Goff, 52 N. Y. 434; Kraushaar v. Meyer, 72 id. 602; DeLavallette v. Wendt, 75 id. 582. Judgment affirmed. Leonard v. Columbia Steam Navigation Co., appellant. Opinion by Miller, J. [Decided Feb. 8, 1881.] CORPORATION

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MEMBER OF BENEFICIARY ASSOCIA TION ENTITLED TO PROPERTY RIGHTS CANNOT BE EXPELLED WITHOUT NOTICE AND HEARING WHAT DOES NOT EXCUSE NOTICE. It is well settled that an association whose members become entitled to privileges or rights of property therein cannot exercise its power of expulsion without notice to the party charged or without giving him an opportunity to be heard. Ang. & A. Corp., § 420; Bartlett v. Medical Society, 32 N. Y. 187; Commonwealth v. Pennsylvania Ben. Soc., 2 Serg. & R. 141; Innes v. Wylie, 1 C. & K. 257. Accordingly where the charter of a beneficiary association provided that the secretary should give to a member

who is six months in arrears a written notice of the fact, and that "he shall be stricken from the roll if he does not pay his dues within thirty days," held, that a notice was essential to deprive the member in arrears or his representative after his death of the benefits of membership in the society, and that the fact that the member had changed his place of residence without notifying the society was not an excuse for a failure to serve a notice upon him, especially when there was a specific penalty imposed by the society by-laws upon a member changing his residence without giving notice. Judgment affirmed. Wachtel v. Noah Widows and Orphans' Benevolent Society, appellant. Opinion by Danforth, J.

[Decided Feb. 1, 1880.]

BAWDY OR

CRIMINAL LAW-DISORDERDY HOUSE GAMBLING HOUSE NEED NOT BE NOISY OR OPENWHAT EVIDENCE OF BAWDY HOUSE- EVIDENCE OF GAMBLING. -The indictment charged plaintiff in error with keeping a disorderly and common bawdy and gambling house, concluding ad commune nocumentum. The court at trial charged that it was not necessary to constitute the offense of keeping a disorderly house that the public should be disturbed by noise, and refused to charge that in order to convict the prisoner of keeping a disorderly house the jury must find that the house was so kept as to disturb, annoy and disquiet the neighbors and people passing. Held, no error. Rex v. Dixon, 10 Mod. 305; 1 Hawk. P. C. 693. The keeping of a common bawdy or gambling house constitutes the house a disorderly house and indictable nuisance at common law. It is not an essential element that it should be so kept that the neighborhood is disturbed by the noise or that the immoral practice should be open to public observation. The court further charged that if prostitutes came to prisoner's saloon for the purpose of prostitution and there consummated their intent to the knowledge and with the consent of prisoner, the jury should find him guilty. Held, no error. The counsel for prisoner requested a charge that the playing of cards in the prisoner's house does not of itself make it a gambling house. The court answered "except that it is the gambling for money that makes it a disorderly house." Held, no error. Judgment affirmed. King, plaintiff in error, v. People of New York. Opinion by Andrews, J. [Decided Jan. 25, 1881.]

NEGLIGENCE-WHEN QUESTION OF FACT FOR JURY.In an action against a railroad company for injury to a horse caused by the foot of such horse being caught between the rail and the planking at a street crossing, the evidence was conflicting. It was proved by plaintiff upon the trial that the plank was so placed that there was a space of a little more than three and onequarter inches between the plank and the rail, which space was for the passage of the flange of the car wheels; and the evidence of the plaintiff showed that two and one-quarter inches was all which was required for that purpose, and hence the space was one inch wider than it should have been, and this caused the horse's hoof to get into the open space and to be caught by the toecalk under the rail. It also appeared from plaintiff's evidence that the plank was from one-quarter to threeeighths of an inch higher than the top of the rail. The court at trial nonsuited plaintiff on the ground that there was no evidence of negligence on the part of defendant in constructing the crossing. Held, error. The case is within the rule that it is a matter of right in the plaintiff to have the issue of negligence submitted to the jury when it depends upon conflicting evidence or on inferences to be drawn from circumstances in regard to which there is reason for a difference of opinion among intelligent men. Wolfkiel v. Sixth Ave. R. Co., 38 N. Y. 49; Weber v. New York Cent., etc., R. Co., 58 id. 451; Hart v. Hudson River B. Co., 80 id.

622. Judgment reversed and new trial granted. Payne, appellant, v. Troy & Boston Railroad Co. Opinion by Miller, J. Folger, C. J., Earl and Rapallo, JJ., dis

sent.

[Decided Jan. 25, 1881.]

PRACTICE

-PREFERRED CASES IN COURT OF APPEALS.-Notwithstanding the provisions of section 791 of the Code of Civil Procedure, giving certain preferences among civil causes, in the trial or hearing thereof, it is still necessary for a party claiming a preference in this court, to comply with the directions of rule 20. He must therefore in his notice of argument, state such claim and the other facts mentioned in that rule. Motion granted. Taylor, appellant, v. Wing. Opinion by Danforth, J. [Decided Jan. 25, 1881.]

TITLE TO CHATTEL-ONE ASSERTING CANNOT CLAIM LIEN-SALE AND DELIVERY BY OWNER IN COMMON

NOT CONVERSION AUTHORIZING REPLEVIN. — (1) In an action of replevin for a horse, plaintiff claimed title and that the defendant wrongfully withheld the horse from him. The defendant answered that he was part owner of the horse, having acquired his title by purchase from one who was part owner with plaintiff. Held, that the answer disclosed a good defense, if true, as replevin will not lie by one tenant in common of a chattel, against another tenant in common, for taking the chattel, and if one of them sells his interest to a third party he has a right to deliver the chattel to the purchaser, and neither he nor any one assisting him in doing so is liable to an action. (2) The plaintiff did not, until the summing up of the case, claim any lien upon the horse, but claimed to be the sole owner. Held, that if he failed to establish his claim of sole ownership, he could not recover upon a claim of a lien for the care and keeping of the horse. A claim of ownership is inconsistent with one of lien, and both cannot be asserted at the same time. A claim of ownership waives the lien, if one exists, aud consequently one who makes such claim as against the true owner cannot, if his alleged title turns out to be unfounded, fall back upon his lien. Everett v. Saltus, 15 Wend. 474; S. C., 20 id. 267; Holbrook v. Wight, 24 id. 169. The rule is most frequently applied where a defendant who claims to retain property fails to set up his lien or makes some claim or does some act inconsistent therewith. But it is equally applicable to a plaintiff who, as against one who turns out to have a better title than himself, claims as owner when he has nothing but a lien. Mexal v. Dearborn, 12 Gray, 336. Judgment reversed and new trial ordered. Hudson v. Swan et al., appellants. Opinion by Rapallo, J. [Decided Jan. 25, 1881.]

WILL-CONSTRUCTION OF BEQUEST TO ONE SON

AND CHILDREN OF ANOTHER-WHEN CONSTRUED PER STIRPE - WHERE LEGACY VESTS. By the second clause of his will testator gave to his wife, during her life, 169 acres of land, directing "that at the death of my wife said land be sold by my executor and the proceeds be equally divided between my daughters, S., H. and J., and the children and heirs of my sons B. and U., and of my daughter C., share and share alike, and if either of the heirs above mentioned and intended shall die after the date of this will, and before the said sums are paid, then the shares of the one so dying without issue shall be equally divided among the other heirs above named." By the fifteenth clause of the will he thus provided: "I give, etc., the rest and residue of my property, real and personal, to my wife, my daughters S., H. and J., and the children of my sons B. and U., to be equally divided among them, share and share alike," except certain specified real property, one-third of which he gave to his wife, and directed his executor to sell such specified property and “divide two-thirds of the proceeds among the heirs last men

tioned." Testator died leaving all six of his children named surviving, and soon thereafter his executor died. The daughters H. and J. married and died leaving husbands but no issue; the son E. died leaving one child and a grandchild his heirs, and the son U. died leaving seven children. Thereafter the wife died, and after her the daughter C. without issue. In an action brought thereafter to determine the distribution, etc., and to appoint a trustee to carry out the will, held, that under the terms of the will the daughters H., J. and C., or any claiming under them, were excluded, and the proceeds of the 169 acres were to be divided between the daughter S., the children of the son U. and the child and grandchild of the son B., per stirpe, and not per capita, S. taking one share, the children of U. one share, and the child, etc., of B. one share. No part of the remainder provided for in the second clause vested at the death of the testator. See Houghton v. Whitgrave, 1 Jac. & Walker's Ch. 145; Teed v. Morton, 60 N. Y. 502; Moncreef v. Ross, 50 id. 431; Hatch v. Bassett, 52 id. 359. The rule that under a devise or bequest to one and the children of another, prima facie the persons take per capita and not per stirpes, is technical and subject to many exceptions, and courts readily depart from it when a different intent is discoverable. Jarm. ou Wills, 107; Balcom v. Haynes, 14 Allen, 204; Lockhart v. Lockhart, 3 Jones' Eq. (N. C.) 205; Forber v. Shillman's Ex'rs, 3 C. E. Green, 229; Clark v. Lynch, 46 Barb. 81; Hoppock v. Tucker, 59 N. Y. 202; Ferrar v. Pyne, 81 id. 99. Judgment modified. Vincent et al. v. Newhouse et al., appellants. Opinion by Danforth, J. [Decided Jan. 18, 1881.]

UNITED STATES SUPREME COURT ABSTRACT.

MARITIME LAW-PETITION FOR LIMITING LIABILITY IN CASE OF COLLISION MAY BE FILED AFTER TRIAL

ENGLISH AND AMERICAN RULES DIFFER. - A petition under the 54th rule in admiralty, claiming the benefit of a limitation of liability in case of collision, to the value of the owner's interest in the vessel, as provided by section 4283, United States Revised Statutes, may be filed after the trial of the cause. It is not necessary and the 56th rule does not require that it be filed before the trial, although a second trial upon the merits may not be had between the parties. It was not the intention of the admiralty rules to preclude a party from claiming the benefit of a limited liability after a trial of the cause of collision. The 56th rule was merely intended to relieve ship-owners from the English rule of practice, which requires them, when they seek the benefit of the law of limited liability, to confess the ship to have been in fault in the collision. This was deemed to be a very onerous requirement; for in many, if not in most cases, it is extremely doubtful which vessel, if either, was in fault; and to require the owners of either to confess fault before allowing them to claim the benefit of the law, would go far to deprive them of its benefit altogether. Hence this court, in preparing the rules of procedure for a limitation of liability, deemed it proper to allow a party seeking such limitation to contest any liability whatever. But this rule of procedure was not intended to abrogate, and indeed could not abrogate, the rule of law, that res judicata, or a matter once regularly decided between parties in a competent tribunal, cannot be again opened by either of them except in an appellate proceeding. The institution of proceedings for a limitation of liability must, however, be subject to some limitations growing out of the nature of the case. They must be regarded as ineffectual as to any specific party if not undertaken until after such party has obtained satisfaction of his demand. The doctrine of