Page:Harvard Law Review Volume 8.djvu/242

226 226 HARVARD LAW REVIEW. would not have been possible, had the trial judge not separated the extract which he read to the jury from the context. The conception which the Supreme Court meant to enunciate was, that, if the plaintiff should be able to make out a prima facie case for the jury, the burden of going forward with the evidence, with a view to destroying the plaintiff's case, would rest upon the defendant. This is clearly sound law. It was said in the note which has been referred to, that at the next trial the defendant would probably advance the theory that his act was instinc- tive, and ask for an instruction to the jury that, if his action was involun- tary, and such as would instinctively result from a sudden and irresistible impulse to escape a terrible danger, he was not liable to the plaintiff for the consequences of it. It was submitted further, that it was difficult to see how such an instruction could be refused. On the second trial the defendant's counsel requested the court to charge that, " If the jury find from the evidence that the defendant did take the plaintiff and use him as a shield, but that this action was involuntary, or such as would instinc- tively result from a sudden and irresistible impulse in the presence of a terrible danger, he is not liable to the plaintiff for the consequences of it." The court declined to give the instruction precisely in the words requested, but charged instead, that the essence of the liability must be a voluntary act. The Supreme Court (Van Brunt, P. J.) now declare that this was error, and that the defendant was entitled to have the instruc- tion which he asked for submitted to the jury. "The essence of the liability," the court says, " is not whether the act of Sage was voluntary or not. An instinctive act may be voluntary ; an act done upon the spur of the moment, in anticipation of impending evil, may be voluntary. But such acts are not the result of an intent based upon reasoning." If the act of the defendant was of this character, the court appears to believe that he ought not to be held liable for the consequences of it. Collateral Inheritance Tax. — The case of Minot v. Winthrop, decided October 17, 1894, by the Supreme Court of Massachusetts, involves some points of more than local importance. It raises the question whether the St. 189 1, c. 425, imposing a collateral inheritance tax, is constitu- tional. One of the objections urged against this statute was that the right of succession was a necessary incident of property, protected by the Constitution of Massachusetts and that consequently the State could not tax it. As was to be expected, the court declined to take this view and upheld the statute. (There is a dissenting opinion, but on another point.) The court holds that the State has full power to regulate the devolution of property on the death of the owner, subject only to the limitations that such regulation be reasonable, and that no property be taken, either by taxation or directly, except for the public service. To conclude from this, as the court does, that the State could not take away altogether the inheritable quality of property is to go further than is necessary in this case. Undoubtedly the private inheritance of property is, in some meas- ure, a social necessity in our age, and an abolition of it would at present be neither reasonable nor a taking of property for the public service. But the Constitution is a growth, and it is conceivable, though not likely, that a time might come when such a measure might be very differently viewed, even under the present Constitution. Aside from these limitations, however, whose severity may vary with