machinery as causing an intolerable noise, making it impossible to hear conversation, the finding states, in addition, that it caused the house to jar, and made the windows rattle and the dishes jolt together. Now without stopping to show how far these facts might come in under the general allegations of the complaint in respect to being harassed, annoyed, and made uncomfortable, and the house being made unfit for habitation, we may concede, for the purposes of discussion, that in the two particulars mentioned, the finding specifies injuries not specifically alleged, and our answer is that the inference attempted to be drawn therefrom, that the court gave damages for those additional injuries, is unwarrantable. It should be borne in mind that the suit was for an injunction and also for damages, and the evidence to be received and the facts to be found and made part of the record had reference necessarily to both remedies.

was

All the necessary effects of running the defendants' machinery in close proximity to the plaintiff's house were to be inquired into upon the trial, in order to determine whether it was a nuisance, and whether it was such a one as to demand the extraordinary remedy of an injunction. The facts referred to therefore had a proper office to perform. "Health endangered perfectly established when the court found health actually injured, for the greater must include the less, and health injured was a much stronger reason for an injunction, as the nuisance, if continued, might result in the permanent impairment of health. So as to the other fact, if the machinery operated with such tremendous power as to jar the house itself, the court not only would see how intense and intolerable the noise must have been, and that the allegation in that respect was true, but that the necessity for an injunction was more urgent on that account. Now our conclusion is, that as all the facts referred to had a perfectly legitimate office to perform in the mind of the trial judge, it is to be conclusively presumed, in the absence of any evidence to the contrary shown by the record, that they were so applied. This principle has often been invoked to prevent a new trial for an alleged improper admission of evidence, where there was a general objection at the time, and the court received the evidence, but gave no indication as to the use to be made of it, and where for one purpose it would have been proper, but for another very improper. The party in such cases is never allowed to say it was used for the improper purpose. The analogy is perfect, only in the case at bar there is stronger reason to apply the principle, because there was no objection at all to the facts in the court below, and yet, in effect, we are asked to reverse the presumption, and hold that where facts had a legitimate and an illegitimate purpose, it must be conclusively presumed in favor of the latter. We cannot accede to such an extraordinary demand.

There was no error in the judgment complained of. The other judges concurred.

sideration in determining the amount in controversy, although the verdict is less than the jurisdictional amount. June 14, 1887. Reed v. Towbridge. Per Curiam.

ATTORNEY LIEN TRANSFER PENDING SUIT PRIORITY INDEMNITY -BREACH.- (1) An attorney who has rendered services in a partition suit has a lien for those services upon his client's share of the proceeds paramount to the claims of third persons to whom the client, pending the suit, assigns and mortgages his interest in the property as security for money owing them by him. (2) The fact that the surety on an administrator's bond has been put to expense in bringing his principal to an accounting, and in procuring his own discharge, does not constitute a breach of an indemnifying bond given him by the administrator, when upon such accounting the estate is found indebted to the administrator. June 14, 1887. Boyle v. Boyle. Per Curiam.

BANKRUPTCY-FRAUDULENT PREFERENCE-ACTUAL FRAUD-INDORSER'S RELEASE. (1) Under the 1874 amendment to section 39 of the bankrupt act of 1867, prohibiting one who by actual fraud has obtained a fraudulent preference to prove for more than a moiety of his claim in bankruptcy, held, that a judgment by default against the maker of certain promissory notes, recovered by an attorney who had notice of the maker's insolvency, though adjudged a constructive fraud, and void as against the assignee, was not such actual fraud as to prevent plaintiff from proving the whole of its claim. (2) In such case the accommodation indorser of the notes sued on, not being debarred by plaintiff's conduct from proving his claim bankruptcy, is not released from his liability to plaintiff. June 7, 1887. Jefferson County Nat. Bank v. Streeter. Opinion by Andrews, J.

in

CONSTITUTIONAL LAW-ADULTERATION OF MILK.Laws N. Y. 1885, chap. 183, § 3, providing that any person who sells, supplies, or brings to be manufactured, to any butter or cheese factory, any milk diluted with water, etc., shall be guilty of misdemeanor, is not unconstitutional. The prohibited act was, before the statute, lawful or even innocent and without any elements of moral turpitude. The validity of the statute in question is assailed on the ground that it converts what is or may be an innocent.act into a criminal offense, and that it is a restriction upon that natural liberty possessed of every owner of property to use it in any lawful way. The power of the Legislature to define and declare public offenses is unlimited, except in so far as it is restrained by constitutional provisions and guaranties. A legislative act is presumptively valid, and whoever questions its validity must be able to point to some limitation or restriction, or to some guaranty in the Constitution of the State or the United States which it violates, before its operation can be stayed, or the court be called upon to pronounce it void. Bertholf v. O'Reilly, 74 N. Y. 509. It is not a good objection to a statute prohibiting a particular act, and making its commission a public offense, that the prohibited act was before the statute lawful, or even innocent, and without any elements of moral turpitude. It is the province of the Legislature to determine, in the interest of the public, what shall be permitted or forbidden, and the statutes contain very many instances of acts prohibited the criminality of which consists solely in the fact that they are prohibited, and not at all in their intrinsic quality. The unnecessary multiplication of mere statutory offenses is undoubtedly an evil, and the general interests are best promoted by allowing the largest practicable liberty of individual action; but nevertheless the justice and wisdom of penal legislation, and its extent within constitutional limits, is a matter resting in the judg

ment of the legislative branch of the government, with which courts cannot interfere. The provision in the third section of the act of 1885, now in question, is we think a valid exercise of legislative power. The act, as the title indicates, was aimed at the prevention of frauds in dealings in dairy products, and the preservation of the public health. The prohibition in the third section against supplying or bringing to any butter or cheese manufactory milk diluted with water, to be manufactured into butter or cheese, does not make a fraudulent intent a necessary ingredient of the crime. It puts upon the person bringing or supplying milk to a butter or cheese manufactory the risk of ascertaining that the milk is pure. It is well known. that the system of manufacturing butter and cheese in factories established for the purpose is very common, and this provision of the act of 1885 was doubtless designed for the protection of persons interested in the common enterprise against fraudulent practices which should unduly enhance the gains of one to the injury of others. This purpose is not in terms expressed in the title of the act, or in the section in question. But this was not necessary. The act of mixing water with milk intended for a butter or cheese factory could seldom be committed except for a fraudulent purpose. It is not necessary to the validity of a penal statute that the Legislature should declare on the face of the statute the policy or purpose for which it was enacted. It is sufficient if it enacts a plain and definite rule, not inconsistent with fundamental principles. An inapt or defective title to a criminal statute does not make void a provision not within the exact scope or purpose of the act as expressed in the title. We are referred to no constitutional provision in support of the alleged invalidity of the statute in question, except the time-honored and memorable declaration that no person shall be deprived of life, liberty and property without due process of law. The act in question invades neither life, liberty, nor property. It destroys no existing property (Wynehamer v. People, 13 N. Y. 378), it deprives no one of the right to obtain an honest livelihood (In re Jacobs, 98 N. Y. 108), and it curtails no one in the exercise of any right, except the right to do an act which, under ordinary circumstances, could only be done with a fraudulent purpose. It is said that the prohibition in the third section extends so far as to make it criminal fora dairyman owning and conducting a butter or cheese factory, for the manufacture of butter and cheese from milk exclusively produced by himself, to supply the factory with milk from his own cows, mixed with water. This would not be a reasonable construction of the act, and if such a supposed state of facts exists in this case, it is matter of defense on the trial, and it was not necessary to negative their existence on the face of the indictment. Com. v. Dana, 2 Metc. 341; People v. Walbridge, 6 Cow. 513; Fleming v. People, 27 N. Y. 329. The following authorities

tend to sustain the views above expressed, on the main question considered. People v. Cipperly, 101 N. Y. 634; 4 N. E. Rep. 107; People v. Arensberg, 105 N. Y. 123; 8 N. E. Rep. 736; Phelps v. Racey, 60 N. Y. 10; Com. v. Waite, 11 Allen, 264; Com. v. Evans, 132 Mass. 11. June 28, 1887. People v. West. Opinion by Andrews, J.

CORPORATIONS GIFT OF STOCK AND BONDS LIABILITY OF STOCKHOLDER.-Inasmuch as the liability of a shareholder in a corporation to pay for stock does not arise out of the relation, but depends upou his contract with the corporation, express or implied, or upon some statute fixing his liability, in the absence of either contract or statute, one to whom shares have been issued as a gratuity does not, by accepting them, commit any wrong upon creditors, or make himself

liable to pay the nominal face of the shares as upon a subscription or contract. Skrainka v. Allen, 76 Mo. 384, distinguished, being founded upon a statute. Where stock with forty per cent credited as having been paid thereon, but which, in fact, had not been paid, was issued by a corporation, as a gratuity, to shareholders who had been called upon to pay calls on their original subscriptions in excess of what was expected, and of what was represented would be necessary at the commencement of the enterprise, held, that a creditor of the corporation could not compel one of such shareholders to account for the unpaid forty per cent on the stock as though he had been a subscriber therefor. Nor can a creditor of the corporation, in such a case, compel one of such shareholders to account for the proceeds of mortgage bonds of the company, received by him on the distribution of the same among stockholders, pursuant to a resolution of the board of directors. There being no liability to account for such bonds to the corporation, there is none to its creditors. The remedy for the evils attendant upon the creation and multiplication of shares of stock in corporations, not based upon corporate property, is with the Legislature. June 7, 1887. Christensen v. Eno. Opinion by Andrews, J.

SECURITY

SUING AS POOR PERSON

COSTS PRACTICE. The trial court granted an order requiring plaintiff to give security for costs, and staying proceedings until it was given. Held, that the court did not by such stay lose jurisdiction to make an order permitting plaintiff to sue as a poor person, and that such order was an answer to a motion pending to dismiss for failure to give the required security. July 1, 1887. Shearman v. Pope. Per Curiam.

INSURANCE-WARRANTY-AGENT WRITING APPLICATION--NON-OCCUPANCY.-(1) If an agent, who is accustomed, with the knowledge of his company, to fill in the answers of applicants upon the blank forms of applications used, writes an answer different from that given by the applicant, a misstatement thus made, without the knowledge of the insured, will not constitute a breach of warranty. The authorities in this State are quite decisive in support of this view. Rowley v. Empire Ins. Co., 36 N. Y. 550; Flynn v. Equitable Life Ins. Co., 78 id. 568; Grattan v. Metropolitan Life Ins. Co.. 80 id. 291. (2) The condition in a policy of insurance that if the house insured shall cease to be occupied, or shall be unoccupied at the time of effecting insurance, and not so stated in the application, the policy shall be void, is intended to protect the company against an increase of risk by reason of the house being vacant. Hence it is not broken when a house which is insured as "* unoccupied" is temporarily occupied, and then vacated by a tenant, before it is burned. The cost of insurance is regulated by the hazard, and when the company insure a vacant building, it charges an equivalent for its undertaking, and if the contract contains no provision limiting the vacancy, it may continue during the whole time of the policy, and the premium presumably covers the risk. The condition in question imposes no obligation upon the owner of a dwelling-house, insured as vacant property, to occupy it for any period during the running of the policy; and it must be conceded that if the plaintiff had permitted the house to remain vacant during the whole time after the policy was issued, to the fire, there would have been no defense founded upon the condition in question. The claim is that the plaintiff, having voluntarily put a tenant in possession, although he was not bound to do so, could not thereafter terminate the tenancy without forfeiting the insurance. We think the construction of the condition is not admissible. The conditions which precede the one in question relate to acts or conditions occurring

subsequent to the contract, which change the risk and increase the hazard. The condition in question is of the same character. It does not permit the owner of a dwelling-house, insured as an occupied house, to increase the hazard by allowing it to become vacant without the consent of the company. If it is unoccupied when insured, the subsequent condition applies that the fact of non-occupation must be stated in the application. The fact of non-occupation was stated in the application as reformed, and was known to the agent, who should have stated it in the application as originally furnished. As between the company and the plaintiff, it must be deemed to have been stated. June 21, 1887. Bennett v. Agricultural Ins. Co. of Watertown, N. Y. Opinion by Andrews, J.

MUNICIPAL CORPORATION -WATER RATES - VALIDITY OF ASSESSMENT NOTICE VOLUNTARY PAY

MENT. (1) Laws N. Y. 1859, ch. 396, § 24, providing for the levying of water rates upon vacant lots in the city of Brooklyn, situated upon streets through which distributing pipes are laid, and making such assessment a lien upon the premises, is unconstitutional in so far as it fails to provide for notice to lot-owners; and an assessment laid without such notice is void. (2) Where part of the purchase price of city property sold was, by consent of the owner paid by the purchaser to the city, to be applied to redeem the property from certain tax sales, which were in fact void sales; and thereafter and before the money had been paid over to the holder of the tax certificates, the owner sued to restrain the city from paying it over, and to recover it, held, that the payment to the city was to be considered as a payment of the plaintiff's money; that it was no defense to the holder of the tax certificate that the payment was voluntary, the money not having reached him; and the city making no objection on the ground of the payment being voluntary, the plaintiff could recover. June 7, 1887, Remsen v. Wheeler. Opinion by Earl, J., Finch and Andrews, JJ., dissenting.

PATENTS-LICENSE FEES- INVALIDITY — -CONTRACT CONSIDERATION.-(1) So long as the patent has not been annulled by proper legal proceedings, its invalidity is no defense to an action to recover license fees for the term during which the patent was actually used under the license. Marston v. Swett, 66 N. Y. 206; 82 id. 526. (2) A contract of license provided for a forfeiture by the licensee of all rights thereunder upon his default in any quarterly payment of royalties. Such default was made, and the patentee gave notice, but subsequently withdrew it, at the request of the licensee, who promised to pay the amount due. The patent was subsequently declared void. Hela, that the withdrawal of the forfeiture was of itself sufficient consideration to support the promise to pay. June 7, 1887. Hyatt v. Dale Tile Manuf'g Co., Limited. Opinion by Peckham, J.

-

- DAMAGES

OBJECTION

RAILROAD-ELEVATED APPEAL. (1) The construction and operation of an elevated railroad being a trespass as against abutting property owners not compensated, by reason of the fact that it imposes upon the street in which it is erected an unauthorized use, the damages recoverable by such abutters include whatever of injury or inconvenience results to to them from the structure itself, or is incidental to its use. The smoke, gases, ashes and cinders impair the easement of air; the structure itself, and the passage of cars, lessen his easement of light; and the dripping of oil and water and the frequent columns interfere with his convenience of access; and they are all elements of damage, even though they are the necessary concomitants of the construction and operation of the road, and not the product of negligence. (2) Evidence that since the

building of the road the trade and business of the street in which it was erected has fallen off, and the current of custom has largely lessened in volume and changed in character, is admissible; and this is 80, although the result is due in part to a tendency of business to move away from that locality. (3) Where it is conceded all through the trial that the plaintiff had either a fee or an easement in the street, and the controversy was confined to the question of damages, the Appellate Court will not consider the objection, made for the first time on appeal, by the company, that the plaintiff was not the owner of an easement because the title to the street, which was an old one in New York city, presumptively came to the city from a Dutch ground brief, or an English grant, and was an absolute fee. June 7, 1887. Drucker v. Manhattan Ry. Co. Opinion by Finch, J., Rapallo and Peckham, JJ., not voting.

RELIGIOUS SOCIETIES-SALE OF PROPERTY - TRUST CONSENT OF PRESBYTERY CHURCH MEETING WANT OF REGISTER-APPEAL-DECISION UPON FACTS

BELOW.- — (1) An order of the Supreme Court, made on the petition of a majority of the members of a religious corporation, directing a sale of the real estate of such corporation, and that the proceeds be used in procuring another place of worship, as the society shall direct, will not be reversed on the ground that a good title cannot be given by reason of a trust imposed upon the property, where the deed to the corporation is absolute, creating no trust beyond that general duty imposed by the law upon a corporation of using its property for the purposes contemplated in its creation. In such a case, the proceeds take the place of the land, the corporate property is not diverted from the use intended, and so far as a trust exists a sale is consistent with and not destructive of it. (2) The consent of the Presbytery is not made a condition precedent to a valid sale of its realty by a religious society of the Presbyterian denomination, by the acts of 1875 and 1876, restraining the diversion of church property from one sect or denomination to another. The objection that the vote taken at a church meeting, convened to pass upon the question of selling the church land, was illegal for want of a proper register, is of no force where due notice of the meeting was given, the election fairly conducted, no lawful vote excluded, and no unlawful vote admitted. The objection that a meditated sale of church property is unwise and imprudent, and likely to bring disaster upon the church, goes to the merits, and the decision of the courts below upon the facts presented is conclusive in this. June 21, 1887. In re First Presbyterian Church of Buffalo. Opinion by Finch, J.

CURING

TAXATION -TAX-ROLL VERIFICATION DEFECT. The provision of the New York act of 1880 (Rev. Stat. N. Y. (7th ed.), p. 993, § 27), which requires the tax-roll duly certified by the assessors to be delivered to the supervisor of the town on or before September 1, is merely directory as to the time of verification; and where the assessors have in place of the form of oath prescribed by Laws N. Y. 1885, chap. 201, adopted the form which was in use prior to the enactment of that act, the error is cured by taking the oath in the prescribed form, even though it be subsequent to September 1, and after delivery of the roll to the supervisor, if it be previous to the production of it by him before the board of supervisors, or action by them upon it. July 1, 1887. People v. Jones. Per Curiam.

TRIAL- PRELIMINARY EXAMINATION OF PARTYCODE CIVIL PROC. N. Y., §§ 870-873.- Under Code Civil Proc. N. Y., §§ 870, 872, which provide for an examination of the adverse party before trial, and specify what the affidavit to obtain an order for such

TRUSTS-LIFE-ESTATE-REVISION-EFFECT OF QUITCLAIM DEED.- Where F. N. conveyed certain real estate to J. D. N. in trust to sell the same, and apply the proceeds, during the life of F. N.'s wife, for the support of herself and her children, held, that a subsequent quitclaim deed of the property made by F. N. to J. D. N., for the sole purpose of further securing the income to the wife and children, did not affect the conditions and limitations of the original trust, but left the reversionary estate in the grantor, where it was before the execution of the quitclaim. June 7, 1887. Nearpass v. Newman. Opinion by Ruger, C. J.

ABSTRACTS OF VARIOUS RECENT

DECISIONS.

CARRIERS- - RAILROADS -DUTY TO LIGHT STATIONS.- A railroad company is responsible for injuries received by a passenger seeking to board one of its trains at night, who finds no one to inform him how to reach the sleeping car attached to the train, which is left standing outside of the yard, and to which a sidewalk, erected by the company under a contract with the city, leads in a direct route, which the passenger follows, and from which he falls by reason of defective or insufficient lights at that part of the station approach. The management of the company, on the night of the accident, including the distribution of the lights around the station, the location of its train, with the most important coach left standing outside of the depot yard, thus blocking up an important thoroughfare, and shutting out the best light around the premises; its omission to provide sufficient lights on the right-hand side of the train, particularly at the end of the sidewalk pavement hereinabove described; its omission to instruct, by servants or other employees, its passengers as to the safest course to pursue in order to reach the sleeping car of the train,—are so many distinct and reprehensible violations of the rule recognized as indispensable to the safety of travellers, and so uniformly enforced, in jurisprudence, and which requires railway companies to furnish safe and proper means of ingress and egress to and from trains, platforms, stations, approaches, etc., and "to furnish, at night, ample and sufficient lights to safely guide their passengers to and from such trains, platforms, stations, approaches," etc., and which, under those circumstances, exacts the obligation of procuring the employees and other servants necessary to inform passengers of the exact location of their trains, and to instruct them as to the safest mode of reaching same. Peniston v. Railroad Co., 34 La. Ann. 777, and authorities therein cited. The courts of last resort, in most of our sister States, have, with remarkable uniformity, rigorously enforced the rule, particularly in the intended and humane protection of persons whose business or other wants required their presence around railroad stations at night. While it is true that the rule is intended to afford protection to the public in general, it stands to reason, and it is consonant with justice, that it should apply with exceptional fitness to passengers on the trains of the company, or at its stations with the object of boarding one of its trains.

way companies, as carriers of passengers, to provide platforms, and other reasonable accommodations, for such passengers, at the stations upon such roads at which they are in the habit of taking on and putting out passengers. Their public profession as such carriers is an invitation to the public to enter and to alight from their cars at their stations; and it has been held that they must not only provide safe platforms and approaches thereto, but they are bound to make safe, for all persons who may come to such stations in order to become their passengers, or who may be put off there by them, all portions of their station grounds reasonably near to such platforms; and for not having provided such stational accommodations and safeguards, railroad companies have frequently been held liable for injuries to such persons." Hutch. Carr. 417, 418. Another writer on the same subject has very succinctly traced a limit to be followed by railway carriers, as follows: "It is the duty of the corporation to have its stations open and lighted, and its servants present for the accommodation of those who may wish to leave its traius, or to depart by the same." Thomp. Carr. 108. Numerous decisions of courts of last resort have contributed the material for the rules thus formulated, and it may not be amiss to refer to a few of such adjudications. A passenger waiting for a train found the station so uncomfortable, by reason of tobacco smoke, that she undertook to enter the cars before they were drawn up to the platform from which passengers generally entered them, and by reason of which she was injured, recovered damages for such injuries. McDonald v. Railroad, 26 Iowa, 124. In another case damages were allowed to a person who intended to board a train, and who was injured while running along the line of the road to reach the train in time, on account of darkness. Martin v. Railway, 16 C. B. 179. It has also been held that "when, by reason of the insufficiency of the station, or length of the train, or negligence in the operation of it, passenger cars are brought to a stand at places where there is no landing or other conveniences for getting off the train, if it is reasonable to suppose that no better opportunity will be granted for this purpose, the passenger may alight, although the position is iconveniennt or slightly dangerous. If the company's servants have given the passenger an express invitation to alight, or their conduct is such as to imply an invitation, the passenger will be justified in making the attempt." Thomp. Carr. 268, § 4, and authorities cited by him. The following rule also rests on undisputed judicial sanction: "Wherever a railroad company is in the habit of receiving passengers, whether at a station or some point outside, or if by the regular operation of trains it is necessary to traverse portions of the premises outside of the station-house, passengers have a right to assume that such parts of the premises are in a safe condition for such purpose, even on a dark night." Thomp. Carr. 269, and authorities therein quoted. In the case of Railroad Co. v. Thompson, 1 South. Rep. 840, the Supreme Court of Mississippi, in sustaining a verdict of $15,000 damages against this very company, for injuries sustained in one of their station yards by a person who had gone there on business, and was hurt while passing through a gap in a freight train, usually open for people to pass through, used the following vigorous language: Appellant is answerable for damages in the cause, unless a railroad company, in the prosecution of its business, may set a trap for people, and after a man has been caught in it, and killed or injured, escape liability by assuming the position that he ought to have had more sense than to have been deceived or misled by the contrivance." In the instant case the record shows, that during the

winter months, one or more of the night-train coaches were not pulled into the depot yard, but were left standing across the intersecting street; that trains were entered indifferently on the right and left hand side thereof; that the sidewalk wooden pavement, which was flush with the station platform, had been constructed by the defendant company as part of the considerations for the franchises obtained by it from the city; and no evidence shows that the control of the same has ever been resumed by the city. Quimby v. Boston & M. R. Co., 69 Me. 340. It also appears that the sidewalk in question is one of the important immediate approaches to the company's station, it being used as the only place for the handling of the railroad baggage; that it afforded the most direct route for plaintiff to reach the sleeping car; and that no servant of the company informed him otherwise, whereas a large gate, wide open, gave him free access to it. All these circumstances must be construed as an invitation and an inducement, held out to him by the company, to use the sidewalk as he did. He is therefore fully justifiable in law for having followed the course which was thus so naturally suggested to him by the acts, omission and commission, of the company. Hence he is not amenable to the charge of contributory negligence; and the facts herein recited lead, on the other hand, to the clear conclusion that the company must be held responsible for the accident. Sup. Ct. La., May 23, 1887. Moses v. Louisville, N. O. & T. R. Co. Opinion by Poché, J.; Fenner, J., dissenting.

CONSTITUTIONAL LAW--LICENSE TAXES--INTERSTATE COMMERCE.- A statute which declares that "all travelling agents offering any species of merchandise in this State for sale, or selling by sample or otherwise, shall pay a license of $50," is unconstitutional, and so far as such travelling agents as may represent principals domiciled in other States are concerned, the tax is null and void. Robbins v. Taxing District Shelby Co., Tennessee, 35 Alb. L. Jour. 266. Copious extracts from this luminou and most important decision of that enlightened tribunal show it to be of the greatest consequence to commercial relations between the States. It is upon this theory exclusively that it proceeds. It draws a line of demarkation between the persons and property over which a State has jurisdiction to exercise the taxing power, and those over whom she has none. If the person sought to be taxed, or of whom a State license is required, be one who is merely passing through the State, or one coming into it for the temporary purpose of selling by sample, goods to be imported from another State, or if the goods, the sale of which is thus negotiated, are imported into the State from another State, and not yet become a part of the mass of property therein, neither the person nor property has become subjected to the taxing power of the State; and any State law imposing such a license tax is repugnant to the Federal Constitution, and void. They say that this is no unjust restriction upon the taxing power of the States, but merely the subjection of the States to the Constitution of the United States in the matter of inter-State commerce. It meets the objection that the law makes no unjust discrimination between domestic and foreign drummers, and that is perfectly true in this instance, but that all are taxed alike, by announcing the underlying principle to be that interState commerce cannot be taxed by the States at all, even though the same amount of tax or license should be laid on each class, or on that business which is carried on exclusively within the State. It is the negotiation, in one State, by samples, of sales of goods in auother State, that cannot be taxed. The State license or tax is treated as being an unconstitutional restriction upon the business or calling of introducing into

one State the goods and wares that are manufactured in another. The power of the State to tax inter-State commerce was considered the leading and prominent feature of the law of Teunessee; and the statute of this State under consideration is very similar, if not an exact parallel. On all questions appertaining to the construction of provisions of the United States Constitution and laws of Congress, decisions of the Supreme Court are paramount in authority to our own, and we regard it our duty to follow them. La. Sup. Ct., June 20, 1887. Simmons Hardware Co. v. McGuire. Opinion by Watkins, J.

MARRIAGE-DOWER-DEVISE IN LIEU OF-ELECTION. - A widow, electing to take the provision made for her in the will of her husband, will be barred of dower in land of which he was seised as an estate of inheritance during coverture, and which was sold and conveyed on foreclosure of a mortgage executed by him in which she did not join, unless it plainly appears by the will that she should have such provision in addition to her dower. At common law, where there was a provision in the will for the widow, the presumption was that the testator intended it to be in addition to dower, there being no express words putting the widow to her election, nor any incompatibility arising on the face of the will between the two claims. But under the statute, unless an intention to the contrary plainly appears by the will, the presumption is that the provision made for the widow in the will of her husband is in lieu of dower. "Under the statute, the will is to be regarded as assuming to dispose of the dower estate, unless the contrary clearly appears." Huston v. Cone, 24 Ohio St. 21. There is no language in the will indicating an intention of the testator that the plaintiff should have dower as well as the testamentary provision, no expression to overcome the presumption that the provision is exclusive of dower. It is insisted however that while the widow's election to take under the will bars her of dower in testamentary property, it does not thus operate as to lands of which the husband was seised during coverture, which he had conveyed, but in the conveyance of which she did not join. We are satisfied from an examination of the statutes that the bar to dower by reason of the widow's election to accept under the will extends to all real estate of which the husband may have been seised as an estate of inheritance at any time during the coverture, and in which the wife's dower has not been extinguished by the statutory method. The statute contemplates an alternative, either that the widow shall take under the will alone, unless a contrary intention plainly appears thereby, or retain the provisions made for her by law; but she cannot be entitled to both. If she accepts the testamentary provision made for her, she thereby relinquishes the provisions which the law makes for her, and which include dower in its legal sense. It is manifest that if, in the alternative, she takes under the will alone, she cannot assert a valid claim upon the property which is not embraced in the will, and which could not be the subject of testamentary disposition. The force and intent of the aforegoing enactments, and others of like purport and effect, as operating to bar the widow's dower in lands aliened by the husband during intermarriage, have been illustrated by numerous authorities in other States in the construction of their statutes in relation to dower and wills and of devises for the wife's benefit. Steele v. Fisher, 1 Edw. Ch. 435: Palmer v. Voorhis, 35 Barb. 479; Evans v. Pierson, 9 Rich. 9; Avant v. Robertson, 2 McMul. 215; Haynie v. Dickens, 68 Ill. 267; Buffington v. Fall River Nat. Bank, 113 Mass. 246. At variance apparently with the decisions which we have herein cited, is the case of Borland v. Nichols, 12 Penn. St. 38. Ohio Sup. Ct., June 7, 1887. Corry v. Lamb. Opinion by Dickman, J.