1 68 HARVARD LAW REVIEW tense that he was misled by it. This variance, between the pleading and the proof, the court had full authority to amend or to disregard under the Code. This question of pleading has been a terror to suitors for many years before the Code. Legislatures have sought in vain to give relief, and now if this decision be sustained, I think our movement is backward much more than half a century. . . . Probably in not one case in ten thousand has injustice been done from the ignorance of a suitor as to the matters to be tried. But the cases of loss and damage to suitors by some defect of pleading have been innimierable." The whole tendency in modern times is away from the technical view of the New York court; and the view of Peckham, J., is becoming more and more widely accepted.^ It cannot be said that the modern view has actually resulted in the siuprise or confusion so dreaded by the court in Jackson v. Strong; and certainly, as Peckham, J., observed, it is the technical view rather than the modern view which results in in- justice. The New York decisions emphasize the necessity of bringing about those changes in procedural law which are now being so strongly urged by the practical and intelligent members of the bar of that state. Income Tax on Nonresidents. — All taxation is based upon pro- tection fumished by the sovereign levying the tax to person, property or business.^ The income tax, like all other taxes, must be supported upon this principle, and it has therefore been held that income received by a nonresident from property situated beyond the state is not within the taxing power of the state.* So where a Wisconsin decedent left personal property to a nonresident trustee in trust for a nonresident, and the trustee removed the property from the state, it was held that income thereafter accruing was not taxable in Wisconsin.^ The right to tax the domiciled resident upon all his income, from whatever source, seems to be clear, since the sovereign is exercising there- by his jurisdiction over the person taxed. Most jurisdictions impose the tax upon all domiciled residents.'* What effect the decision of the Supreme Court in Union Refrigerator Transit Co. v. Kentucky^ may have upon the American acts is not altogether clear. The courts wUl probably allow the taxation of all income, even that derived from chattels situated elsewhere, at the state of the domicile, on the ground that the permission and protection of that state enables the owner to receive and enjoy the income; just as they allow the state of domicile of a decedent to tax the inheritance of chattels situated in other states.* ' See Knapp v. Walker, 73 Conn. 459, 47 Atl. 655 (1900); Bruheim v. Stratton, 145 Wis. C71, 129 N. W. 1092 (1911); Cockrell v. Henderson, 81 Kan. 335, 105 P. 443 (1909); 50 L. R. A. (n. s.) I. See also 24 Harv. L. Rev. 480.
- Union Refrigerator Transit Co. v. Kentucky, 199 U. S. 194, 26 Sup. Ct. Rep. 36
(1905).
- State V. Wisconsin Tax Comnussion, 161 Wis. iii, 152 N. W. 848 (1915).
' Bayfield County v. Pishon, 162 Wis. 466, 156 N. W. 463 (1916). « British Tax Act of 1853, § 2, Sched. C. D.; U. S. Tax Act of October 3, 1917, § i; Wisconsin Income Tax Act, § 1087 w, § 2. ' 199 U. S. 194, 26 Sup. Ct. Rep. 36 (1905), 8 Biillen V. Wisconsin, 240 U. S. 625 (1916).
