Page:The Green Bag (1889–1914), Volume 17.pdf/402

 EDITORIAL DEPARTMENT defects, which makes the act of transfer itself a conscious leading of the transferee into a known danger. TRUSTS (Spendthrift, Statute, Constitutionality of) R. FLOYD CLARK, in the May Columbia Law Review (V. v, p. 380), describes "An Episode in the Law of Trusts." This is an interesting statement of the consequences to many trust estates of a change in the law in New York obtained by an enterprising attorney, to en able his client to break spendthrift trusts. The statute had to be made retroactive, and although in the case by which it was called forth, the trustee made no serious contest, it resulted in much litigation with respect to other trusts as to the constitutionality of the retroactive provision. The author argues in support of the constitutionality of the pro vision which, unfortunately, has been left open for decision in the leading cases in which it was involved, on the ground that a dead man is not a person who has rights under our con ception of the constitutional provision, and that, therefore, the creator of the trust is not deprived of his property. Nor has a trustee a beneficial interest of which he can be de prived. The author also cites the case in question as an extreme example of judicial legislation since the justices to avoid consti tutional questions held that the statute was not retroactive though it was plainly intended so to be.

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WITNESSES (Expert Testimony) A CAREFUL consideration of the law relating to the examination of experts entitled, "The Examination of the Medical Expert," by H. B. Hutchings, is begun in the May Michigan Law Review (V. iii, p. 520). It relates to the form and scope of the hypothetical questions per mitted. He sums up his conclusions as to the topics treated in this number as follows: "Although the authorities upon the subject are somewhat in conflict and very generally confused, they probably justify the following propositions: Ordinarily, in the examination of an expert whose opinion must be based upon facts with which he is not familiar, the facts upon which the opinion is to be based, should be stated clearly and logically in the question. This is the safe practice, and may properly be adopted in every case. If the facts are complicated, and, as given in the testimony, are in any way ambiguous or con tradictory, this is the only safe practice. If, however, there is no controversy as to the facts, or if it is desired to base the opinion of the expert upon the testimony of a single witness or of several witnesses, and that testi mony is in no way confused, complicated, am biguous, or contradictory, then the examiner may properly ask the expert to base his opinion upon the undisputed facts or the indicated testimony, assumed for the purposes of the answer as having been established."