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machinery as causing an intolerable noise, making it sideration in determining the amount in controversy, impossible to hear conversation, the finding states, in although the verdiot is less than the jurisdictional addition, that it caused the house to jar, and made the amount. June 14, 1887. Reed v. Towbridge. Per windows rattle and the dishes jolt together. Now
Curiam. without stopping to show how far these facts might
ATTORNEY – LIEN — TRANSFER PENDING SUIT – come in under the general allegations of the complaint
PRIORITY – INDEMNITY – BREACH.- (1) An attorney iu respect to being harassed, annoyed, and made un
who has rendered services in a partition suit has a lien comfortable, and the house being made unfit for
for those services upon his client's share of the prohabitation, we may concede, for the purposes of dis
ceeds paramount to the claims of third persons to cussion, that in the two particulars mentioned, the
whom the client, pending the suit, assigns and mortfinding specifies injuries not specifically alleged, and
gages his interest in the property as security for money our answer is that the inference attempted to be drawn
owing them by bim. (2) The fact that the surety on therefrom, that the court gave damages for those ad.
an administrator's bond bas been put to expense in ditional injuries, is unwarrantable. It should be borne
bringing his principal to an accounting, and in proin mind that the suit was for an injunction and also for
curing his own discharge, does not constitute a breach damages, and the evidence to be received and the facts
of an indemnifying bond given him by the adminito be found and made part of the record had reference
strator, when upon such accounting the estate is found necessarily to both remedies.
indebted to the administrator. June 14, 1887. Boyle All tbe necessary effects of running the defendants'
v. Boyle. Per Curiam. machinery in close proximity to the plaintiff's house were to be inquired into upon the trial, in order to
BANKRUPTCY-FRAUDULENT PREFERENCE-ACTUAL determine whether it was a nuisance, and whether it
FRAUD-INDORSER'S RELEASE.- (1) Under the 1874 was such a one as to demand the extraordinary remedy
amendment to section 39 of the bankrupt act of 1867, of an injunction. The facts referred to therefore had
prohibiting one who by actual fraud has obtained a a proper office to perform. “Health endangered" was
fraudulent preference to prove for more than a moiety perfectly established when the court found health
of his claim in bankruptcy, held, that a judgment by actually injured, for the greater must include the less,
default against the maker of certain promissory notes, and health injured was a much stronger reason for an
recovered by an attorney who had notice of the injunction, as the nuisance, if continued, might result
maker's insolvency, though adjudged & constructive in the permanent impairment of health. So as to the
fraud, and void ay against the assignee, was not such other fact, if the machinery operated with such tremen
actual fraud as to prevent plaintiff from proving the dous power as to jar the house itself, the court not only
whole of its claim. (2) In such case the accommodawould see how intense and intolerable the noise must
tion indorser of the notes sued on, not being debarred have been, and that the allegation in that respect was
by plaintiff's conduct from proving his claim in true, but that the necessity for an injunction was more
bankruptcy, is not released from his liability to plainurgent on that account. Now our conclusion is, that
tiff. June 7, 1887. Jefferson County Nat. Bank v. as all the facts referred to had a perfectly legitimate
Streeter. Opinion by Andrews, J. office to perform in the mind of the trial judge, it is to CONSTITUTIONAL LAW-ADULTERATION OF MILK.be conclusively presumed, in the absence of any evi Laws N. Y. 1885, chap. 183, § 3, providing that any person dence to the contrary shown by the record, that they who sells, supplies, or brings to be manufactured, to any were so applied. This principle has often been invoked butter or cheese factory, any milk diluted with water, to prevent a new trial for an alleged improper admis. etc., shall be guilty of misdemeanor, is not unconstitusi on of evidence, where there was a general objection
tional. The prohibited act was, before the statute, at the time, aud the court received the evidence, but
lawful or even innocent and without any elements of gave no indication as to the use to be made of it, and
moral turpitude. The validity of the statute in queswhere for one purpose it would have been proper, but tion is assailed on the ground that it converts what is for another very improper. The party in such cases or may be an innocent.act into a criminal offense, and is never allowed to say it was used for the improper that it is a restriction upon that natural liberty pospurpose. The analogy is perfect, only in the case at
sessed of every owner of property to use it in any lawbar there is stronger reason to apply the principle, be ful way. The power of the Legislature to define and cause there was no objection at all to the facts in the declare public offenses is unlimited, except in so far court below, and yet, in effect, we are asked to reverse
as it is restrained by constitutional provisions and the presumption, and hold that where facts had a guaranties. A legislative act is presumptively valid, legitimate and an illegitimate purpose, it must be con and whoever questions its validity must be able to clusively presumed in favor of the latter. We cannot point to some limitation or restriction, or to some accede to such an extraordinary demand.
guaranty in the Constitution of the State or the United There was no error in the judgment complained of. States which it violates, before its operation can be The other judges concurred.
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 NEW YORK COURT OF APPEALS ABSTRACT. 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 APPEAL - WHEN IT LIES — AGGRIEVED BY JUDG
turpitude. It is the province of the Legislature to de. MENT. - In a case where the result of a reversal on ap
termine, in the interest of the public, what shall be peal would be merely to require money to be refunded
permitted or forbidden, and the statutes contain very to one of the defendants who had not appealed, and
many instances of acts prohibited the criminality of could not appeal, held, that the appeal of the other de
which consists solely in the fact that they are prohibifendants would be dismissed on the ground that they
ted, and not at all in their intrinsic quality. The unwere not aggrieved by the judgment. June 28, 1887.
necessary multiplication of mere statutory offenses is Hyatt v. Dusenbury. Per Curiam.
undoubtedly an evil, and the general interests are best - JURISDICTIONAL AMOUNT - COUNTERCLAIM. promoted by allowing the largest practicable liberty - A counter-claim interposed by the defendant, of individual action; but nevertheless the justice and which is uncontradicted, and is allowed by the wisdom of penal legislation, and its extent within jury in arriving at its verdict, must be taken into con- constitutional limits, is a matter resting in the judg
ment of the legislative branch of the goverument, liable to pay the nominal face of the sbares as upon a with which courts cannot interfere. The provision in subscription or contract. Skrainka V. Allen, 76 Mo. the third section of the act of 1885, now in question, 384, distinguished, being founded upon a statute. is we think a valid exercise of legislative power. The Where stock with forty per cent credited as baving been act, as the title indicates, was aimed at the prevention paid thereon, but which, in fact, had not been paid, of frauds in dealings in dairy products, and the pre was issued by a corporation, as a gratuity, to shareservation of the public health. The prohibition in the holders who had beeu called upon to pay calls on their third section against supplying or bringing to any original subscriptions in excess of what was expected, butter or cheese manufactory milk diluted with water, and of what was represented would be necessary at to be manufactured into butter or cheese, does not the commencement of the enterprise, held, that a make a fraudulent intent a necessary ingredient of creditor of the corporation could not compel one of the crime. It puts upon the person bringing or sup such shareholders to account for the unpaid forty per plying milk to a butter or cheese manufactory the risk cent on the stock as though he had been a subscriber of ascertaining that the milk is pure. It is well known. therefor. Nor can a creditor of the corporation, in that the system of manufacturing butter and cheese such a case, com pel one of such shareholders to acin factories established for the purpose is very com count for the proceeds of mortgage bonds of the common, and this provision of the act of 1885 was doubt-| pany, received by him on the distribution of the same less designed for the protection of persons interested among stockholders, pursuant to a resolution of the in the common enterprise against fraudulent practices board of directors. There being no liability to acwhich should unduly enhance the gains of one to the count for such bonds to the corporation, there is none injury of others. This purpose is not in terms ex to its creditors. The remedy for the evils attendant pressed in the title of the act, or in the section in upon the creation and multiplication of shares of stock question. But this was not necessary. The act of in corporations, not based upon corporate property, is mixing water with milk intended for a butter or cheese with the Legislature. June 7, 1887. Christensen v. factory could seldom be committed except for a Eno. Opinion by Andrews, J. fraudulent purpose. It is not necessary to the validity
Costs - SECURITY - SUING AS POOR PERSON of a penal statute that the Legislature should declare
PRACTICE.-- The trial court granted an order requiron the face of the statute the policy or purpose for
ing plaintiff to give security for costs, and staying which it was enacted. It is sufficient if it enacts a
proceedings until it was given. Held, that the court did plain and definite rule, not inconsistent with funda
not by such stay lose jurisdiction to make an order mental principles. An inapt or defective title to a
| permitting plaintiff to sue as a poor person, and that criminal statute does not make void a provision not
such order was an answer to a motion pending to diswithin the exact scope or purpose of the act as ex
miss for failure to give the required security. July pressed in the title. We are referred to no constitu
1, 1887. Shearman v. Pope. Per Curiam. tional provision in support of the alleged invalidity of the statute in question, except the time-honored and
INSURANCE-WARRANTY-AGENT WRITING APPLICAmemorable declaration that no person shall be de
TION--NON-OCCUPANCY.-(1) If an agent, who is accusprived of life, liberty and property without due pro
tomed, with the knowledge of his company, to fill in cess of law. The act in question invades neither life, the answers of applicants upon the blank forms of apliberty, nor property. It destroys no existing property plications used, writes an answer different from that (Wynehamer v. People, 13 N. Y. 378), it deprives no given by the applicant, a misstatement thus made, one of the right to obtain an honest livelihood (In re without the knowledge of the insured, will not conJacobs, 98 N. Y. 108), and it curtails no one in the stitute a breach of warranty. The authorities in this exercise of my right. except the right to do an act | State are quite decisive in support of this view. Rowwhich, under ordinary circumstances, could only be
ances could only be ley y. Empire Ins. Co., 36 N. Y. 550; Flynn y. Equitable done with a fraudulent purpose. It is said that the
Life Ins. Co., 78 id. 568; Grattan v. Metropolitan Life prohibition in the third section extends so far as to Ins. Co.. 80 id. 291. (2) The condition in a policy of inmake it criminal for a dairyman owning and conduct surance that if the house insured shall cease to be ing a butter or cheese factory, for the manufacture of occupied, or shall be unoccupied at the time of effectbutter and cheese from milk exclusively produced by ing insurance, and not so stated in the application, himself, to supply the factory with milk from his own the policy shall be void, is intended to protect the comcows, mixed with water. This would not be a reason- | pauy against an increase of risk by reason of the house able construction of the act, and if such a supposed being vacaut. Hence it is not broken when a house state of facts exists in this case, it is matter of defense, which is insured as “unoccupied " is temporarily ocon the trial, and it was not necessary to negative their cupied, and then vacated by a tenant, before it is existence on the face of the indictment, Com, v. Dana, burned. The cost of insurance is regulated by 2 Metc. 341; People v. Walbridge, 6 Cow. 513; Flem the hazard, and when the company insure a vacant ing v. People, 27 N. Y. 329. The following authorities building, it charges an equivalent for its undertaking, tend to sustain the views above expressed, on the main and if the contract contains no provision limiting the question considered. People v. Cipperly, 101 N. Y. vacancy, it may coutinue during the whole time of the 634; 4 N. E. Rep. 107; People v. Arensberg, 105 N. Y. policy, and the premium presumably covers the risk. 123; 8 N. E. Rep. 736; Phelps v. Racey, 60 N. Y. 10; The condition in question imposes no obligation upon Com. v. Waite, 11 Allen, 264; Com. v. Evans, 132 Mass. the owner of a dwelling-house, insured as vacant 11. June 28, 1887. People v. West. Opinion by property, to occupy it for any period during the run. Andrews, J.
ning of the policy; and it must be conceded that if
the plaintiff had permitted the house to remain vacant CORPORATIONS -- GIFT OF STOCK AND BONDS – during the whole time after the policy was issued, to LIABILITY OF STOCKHOLDER.--Inasmuch as the liabil- | the fire, there would have been no defense founded ity of a shareholder in a corporation to pay for stock upon the condition in question. The claim is that the does not arise out of the relation, but depends upou plaintiff, having voluntarily put a tenant in possession, his contract with the corporation, express or implied, although he was not bound to do so, could not thereor upon some statute fixing his liability, in the absence after terminate the tenancy without forfeiting the inof either contract or statute, one to whom shares have surance. We think the construction of the condition been issued as a gratuity does not, by accepting them,
is not admissible. The conditions which precede the commit any wrong upon creditors, or make himself | one in question relate to acts or conditions occurring subsequent to the contract, which cbange the risk and building of the road the trade and business of the increase the hazard. The condition in question is of street in which it was erected has fallen off, and the the same character. It does not permit the owner of current of custom has largely lessened in volume and a dwelling-house, insured as an occupied house, to in changed in charaoter, is admissible; and this is so, crease the hazard by allowing it to become vacant although the result is due in part to a tendency of without the consent of the company. If it is unoccu business to move away from that locality. (3) Where pied when insured, the subsequent condition applies it is conceded all through the trial that tbe plaintiff that the fact of non-occupation must be stated in the bad either a fee or an easement in the street, and the application. The fact of non-occupation was stated in controversy was confined to the question of damages, the application as reformed, and was known to the the Appellate Court will not consider the objection, agent, who should have stated it in the application as | made for the first time on appeal, by the company, originally furnished. As between the company and that the plaintiff was not the owner of an easement the plaintiff, it must be deemed to have been stated. because the title to the street, wbich was an old one in June 21, 1887. Bennett v. Agricultural Ins. Co. of New York city, presumptively came to the city from Watertown, N. Y. Opinion by Andrews, J.
a Dutch ground brief, or an English grant, and was an MUNICIPAL CORPORATION - WATER RATES - VAL
absolute fee. June 7, 1887. Drucker v. Manhattan Ry. IDITY OF ASSESSMENT — NOTICE – VOLUNTARY PAY
Co. Opinion by Finch, J., Rapallo and Peckham, JJ., MENT.-(1) Laws N. Y. 1859, ch. 396, S 24, providing for not voting. the levying of water rates upon vacant lots in the city RELIGIOUS SOCIETIES - SALE OF PROPERTY - TRUST of Brooklyn, situated upon streets through which - CONSENT OF PRESBYTERY - CHURCH MEETING distributing pipes are laid, and making such assesg. WANT OF REGISTER-APPEAL-DECISION UPON FACTS ment a lien upon the premises, is unconstitutional in BELOW.-il) An order of the Supreme Court, made so far as it fails to provide for notice to lot-owners; on the petition of a majority of the members of & and an assessment laid without such notice is void. religious corporation, directing a sale of the real estate (2) Where part of the purchase price of city property of such corporation, and that the proceeds be used in sold was, by consent of the owner paid by the pur
procuring another place of worship, as the society shall chaser to the city, to be applied to redeem the prop direct, will not be reversed on the ground that a good erty from certain tax sales, which were in fact void title cannot be given by reason of a trust imposed upon sales; and thereafter and before the money had been the property, where the deed to the corporation is paid over to the holder of the tax certificates, the absolute, creating no trust beyond that general duty owner sued to restrain the city from paying it over, imposed by the law upon a corporation of using its and to recover it, held, that the payment to the city property for the purposes contemplated in its creation. was to be considered as a payment of the plaintiff's | In such a case, the proceeds take the place of the land, money; that it was no defense to the holder of the
the corporate property is not diverted from the use tax certificate that the payment was voluntary, the intended, and so far as a trust exists a sale is consismoney not having reached him; and the city making tent with and not destructive of it. (2) The consent no objection on the ground of the payment being of the Presbytery is not made a condition precedent voluntary, the plaintiff could recover. June 7, 1887, to a valid sale of its realty by a religious society of the Remsen v. Wheeler. Opinion by Earl, J., Finch and Presbyterian denomination, by the acts of 1875 and Andrews, JJ., dissenting.
1876, restraining the diversion of church property from PATENTS-LICENSE FEES — INVALIDITY — CONTRACT
one sect or denomination to another. The objection - CONSIDERATION.-(1) So long as the patent has not
that the vote taken at a church meeting, convened to been anpulled by proper legal proceedings, its in
pass upon the question of selling the church land, was validity is no defense to an action to recover
illegal for want of a proper register, is of no force license fees for the term during which the patent was
where due notice of the meeting was given, the elecactually used under the license. Marston v. Swett, 66
tion fairly conducted, no lawful vote excluded, and N. Y. 206; 82 id. 5:26. (2) A contract of license pro
no unlawful vote admitted. The objection that a vided for a forfeiture by the licensee of all rights
meditated sale of church property is uuwise and imthereunder upou his default in any quarterly payment
prudent, and likely to bring disaster upon the church,
goes to the merits, and the decision of the courts below of royalties. Such default was made, and the patentee gave notice, but subsequently withdrew it, at the re
upon the facts presented is conclusive in this. June quest of the licensee, who promised to pay the amount
21, 1887. In re First Presbyterian Church of Buffalo. due. The patent was subsequently declared void.
Opinion by Finch, J. Hela, that the withdrawal of the forfeiture was of TAXATION — TAX-ROLL — VERIFICATION – CURING itself sufficient consideration to support the promise DEFECT.- The provision of the New York act of 1880 to pay. June 7, 1887. Hyatt v. Dale Tile Manuf'g Co., (Rev. Stat. N. Y. (7th ed.), p. 993, $ 27), which requires Limited. Opinion by Peckham, J.
the tax-roll duly certified by the assessors to be deRAILROAD-ELEVATED — DAMAGES - OBJECTION
livered to the supervisor of the town on or before APPEAL. — (1) The construction and operation of an
September 1, is merely directory as to the time of elevated railroad being a trespass as against abutting
verification; and where the assessors have in place of
the form of oath prescribed by Laws N. Y. 1885, chap. property owners not compensated, by reason of the fact that it im poses upon the street in which it is
201, adopted the form which was in use prior to the erected an unauthorized use, the damages recoverable
enactment of that act, the error is cured by taking the by such abutters include whatever of injury or incon
oath in the prescribed form, even though it be subsevenience results to to them from the structure itself,
quent to September 1, and after delivery of the roll or is incidental to its use. The smoke, gases, ashes
to the supervisor, if it be previous to the production and cinders impair the easement of air; the struc
of it by him before the board of supervisors, or action ture itsell, and the passage of cars, lessen his ease
by them upon it. July 1, 1887. People v. Jones. Per ment of light; and the dripping of oil and water and
Curiam. the frequent columns interfere with bis convenience TRIAL- PRELIMINARY EXAMINATION OF PARTYof access; and they are all elements of damage, even CODE CIVIL Proc. N. Y., 88 870-873.- Under Code though they are the necessary concomitants of the Civil Proc. N. Y., SS 870, 872, which provide for an exconstruction and operation of the road, and not the amination of the adverse party before trial, and product of negligence. (2) Evidence that since the specify what the aflidavit to obtain an order for such examination must contain, it is discretionary with the A lucid writer on railroad jurisprudence has formujudge to whom application is made to grant or deny lated the rule as follows: “It is also the duty of rail. such order, although section 873 provides that the way companies, as carriers of passeugers, to provide judge "must" grant such order upon a proper affida platforms, and other reasonable accommodations, for vit. If upon examination, it appears that the testi such passengers, at the stations upon such roads at mony of the adverse party is not in fact "vecessary which they are in the babit of taking on and putting and material," as alleged in the application, the judge out passengers. Their publio profession as such carmay refuse to issue the order. Appeal dismissed. | riers is an invitation to the publio to enter and to June 28, 1887. Jenkins v. Putnam. Opinion by Earl, alight from their cars at their stations; and it has J.; Rapallo, J., votes to affirm.
been held that they must not only provide safe platTRUSTS-LIFE-ESTATE-REVISION-EFFECT OF QUIT
forms and approaches thereto, but they are bound to CLAIM DEED. - Where F. N. conveyed certain real
make safe, for all persons who may come to such staestate to J. D. N. in trust to sell the same, and apply
tions in order to become their passengers, or who may the proceeds, during the life of F. N.'s wife, for the
be put off there by them, all portions of their station support of herself and her children, held, that a subse
grounds reasonably near to such platforms; and for quent quitclaim deed of the property made by F. N.
not having provided such stational accommodations to J. D. N., for the sole purpose of further securing
and safeguards, railroad companies have frequently the income to the wife and children, did not affect the
been held liable for injuries to such persons." Hutch. conditions and limitations of the original trust, but
Carr. 417, 418. Another writer on the same subject has left the reversionary estate in the grantor, where it
very succinctly traced a limit to be followed by railwas before the execution of the quitclaim. June 7,
way carriers, as follows: “It is the duty of the corpo1887. Nearpass v. Newman. Opinion by Ruger, C. J.
ration to have its stations open and lighted, and its Bervants 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 ABSTRACTS OF VARIOUS RECENT
last resort have contributed the material for the rules DECISIONS.
thus formulated, and it may not be amiss to refer to a
few of such adjudications. A passenger waiting for a CARRIERS - RAILROADS - DUTY TO LIGHT STA- train found the station so uncomfortable, by reason of TIONS.- A. railroad company is responsible for injuries tobacco smoke, that she undertook to enter the cars received by a passenger seeking to board one of its before they were drawn up to the platform from wbich trains at night, who finds no one to inform him how passengers generally entered them, and by reason of to reach the sleeping car attached to the train, which which she was injured, recovered damages for such is left standing outside of the yard, and to which a injuries. McDonald v. Railroad, 26 Iowa, 124. In ansidewalk, erected by the company under a contract other case damages were allowed to a person who inwith the city, leads in a direct route, which the passen tended to board a train, and who was injured while ger follows, and from which he falls by reason of de running along the line of the road to reach the train fective or insufficient lights at that part of the station in time, on account of darkness. Martin V. Railway, approach. The management of the company, on the 16 C. B. 179. It has also been held that “when, by night of the accident, including the distribution of the reason of the insufficiency of the station, or length of lights around the station, the location of its train, with the train, or negligence in the operation of it, passeothe most important coach left standing outside of the ger cars are brought to a stand at places where there depot yard, thus blocking up an important thorough is no landing or other conveniences for getting off the fare, and shutting out the best light around the prem train, if it is reasonable to suppose that no better opises; its omission to provide sufficient lights on the portunity will be granted for this purpose, the passenright-hand side of the train, particularly at the end of ger may alight, although the position is icon veniennt the sidewalk pavement hereinabove described; its or slightly dangerous. If the company's servants have omission to instruct, by servants or other employees, given the passenger an express invitation to alight, or its passengers as to the safest course to pursue in order their conduct is such as to imply an invitation, the to reach the sleeping car of the train, -- are so many passenger will be justified in making the attempt." distinct and reprebensible violations of the rule recog Thomp. Carr. 268, § 4, and authorities cited by him. nized as indispensable to the safety of travellers, and The following rule also rests on undisputed judicial 80 uniformly enforced, in jurisprudence, and which sanction: “Wherever a railroad company is in the requires railway companies to furnish safe and proper habit of receiving passengers, whether at a station or means of ingress and egress to and from trains, plat some point outside, or if by the regular operation of forms, stations, approaches, etc., and "to furnish, at trains it is necessary to traverse portions of the premnight, ample and sufficient lights to safely guide their | ises outside of the station-house, passengers have a passengers to and from such trains, platforms,stations, right to assume that such parts of the premises are in approaches,'' etc., and which, under those circum a safe condition for guoh purpose, even on a dark stances, exacts the obligation of procuring the em night." Thomp. Carr. 269, and authorities therein ployees and other servants necessary to inform passen quoted. In the case of Railroad Co. v. Thompson, 1 gers of the exact location of their trains, and to instruct South. Rep. 840, the Supreme Court of Mississippi, in them as to the safest mode of reaching same. Penis. sustaining a verdict of $15,000 damages against this ton v. Railroad Co., 34 La. Ann. 777, and authorities very company, for injuries sustained in one of their therein cited. The courts of last resort, in most of station yards by a person who had gone there on busour sister States, have, with remarkable uniformity, iness, and was hurt while passing through a gap in a rigorously enforced the rule, particularly in the in freight train, usually open for people to pass through, tended and humane protection of persons whose bus. | used the following vigorous language: “ Appellant is iness or other wants required their presence around answerable for damages in the cause, unless a railroad railroad stations at night. While it is 'true that the company, in the prosecution of its businoss, may set a rule is intended to afford protection to tbe public in trap for people, and after a man has been caught in it, general, it stands to reason, and it is consonant with and killed or injured, escape liability by assuming the justice, that it should apply with exceptional fitness position that he ought to have had more sense than to to passengers on the trains of the company, or at its have been deceived or misled by the contrivance." In stations with the object of boarding one of its trains. the instant case the record shows, that during the
winter mouths, one or more of the night-traiu coaches oue State the goods and wares that are manufactured were not pulled into the depot yard, but were left stand in another. The power of the State to tax inter-State ing across the intersecting street; that trains were | commerce was considered the leading and prominent entered indifferently on the right and left hand side feature of the law of Teunessee; and the statute of thereof; that the sidewalk wooden pavement, which this State under consideration is very similar, if not was flush with the station platform, had been con an exact parallel. On all questions appertaining to structed by the defendant company as part of the the construction of provisions of the United States considerations for the franchises obtained by it from Constitution and laws of Congress, decisions of the the city; and no evidence shows that the control of Supreme Court are paramount in authority to our own, the same has ever been resumed by the city. Quimby and we regard it our duty to follow them. La. Sup. v. Boston & M. R. Co., 69 Me. 340. It also appears Ct., June 20, 1887. Simmons Hardware Co. v. Mcthat the sidewalk in question is one of the important | Guire. Opinion by Watkins, J. immediate approaches to the company's station, it be MARRIAGE-DOWER-DEVISE IN LIEU OF-ELECTION. ing used as the only place for the handling of the rail
- A widow, electing to take the provision made for road baggage; that it afforded the most direct route her in the will of her husbaud, will be barred of dower for plaintiff to reach the sleeping car; and that no ser in land of which he was seised as an estate of inherivant of the company informed him otherwise, whereas tance during coverture, and which was sold and cona large gate, wide open, gave him free access to it. All veyed on foreclosure of a mortgago executed by him these circumstances must be construed as an invita- in which she did not join, unless it plainly appears by tion and an inducement, held out to bim by the com- | the will that she should have such provision in addition pany, to use the sidewalk as he did. He is therefore to her dower. At common law, where there was a fully justifiable in law for having followed the course
provision in the will for the widow, the presumption which was thus go naturally suggested to him by the was that the testator intended it to be in additiou to acts, omission and commission, of the company. dower, there being no express words putting the Hence he is not amenable to the charge of contribu widow to her election, nor any incompatibility arising tory negligence; and the facts herein recited lead, on on the face of the will between the two claims. But the other hand, to the clear conclusion that the com under the statute, unless an iutention to the contrary pany must be held responsible for the accident. Sup. plainly appears by the will, the presumption is that the Ct. La., May 23, 1887. Moses v. Louisville, N. 0. & T. provision made for the widow in the will of her husbR. Co. Opinion by Poché, J.; Fenner, J., dissenting. and is in lieu of dower. “Under the statute, the will
is to be regarded as assuming to dispose of the dower CONSTITUTIONAL LAW--LICENSE TAXES--INTERSTATE estate, unless the contrary clearly appears.” Huston COMMERCE.— A statute which declares that “all v. Cone, 24 Ohio St. 21. There is no lauguage in the travelling agents offering any species of merchandise will indicating an intention of the testator that the in this State for sale, or selling by sample or otherwise, plaintiff should have dower as well as the testamenshall pay a license of $50," is unconstitutional, and so tary provision, no expression to overcome the prefar as such travelling agents as may represent princi sumption that the provision is exclusive of dower. It pals domiciled in other States are concerned, the tax is insisted however that while the widow's election to is null and void. Robbins v. Taxing District Shelby take under the will bars her of dower in testamentary Co., Tennessee, 35 Alb. L. Jour. 266. Copious ex property, it does not thus operate as to lands of tracts from this luminou and most important which the husband was seised during coverture, wbich decision of that enlightened tribunal show it to he had conveyed, but in the conveyance of which she be of the greatest consequence to commercial did not join. We are satisfied from an examination relations between the States. It is upon this of the statutes that the bar to dower by reason of the theory exclusively that it proceeds. It draws a widow's election to accept under the will extends to line of demarkation between the persons and property all real estate of which the husband may have been over which a State has jurisdiction to exercise the tax-seised as an estate of inheritance at any time during ing power, and those over whom she has none. If the the coverture, and in which the wife's dower has not person sought to be taxed, or of whom a State license been extinguished by the statutory method. The statis required, be one who is merely passing through the ute contemplates an alternative, either that the widow State, or one coming into it for the temporary purpose shall take under the will alone, unless a contrary intenof selling by sample, goods to be imported from another tion plainly appears thereby, or retain the provisions State, or if the goods, the sale of which is thus negotia made for her by law; but she cannot be entitled to ted, are imported into the State froin another State, both. If she accepts the testamentary provision made and not yet become a part of the mass of property for her, she thereby relinquishes the provisions which therein, neither the person nor property has become the law makes for her, and which include dower in subjected to the taxing power of the State; and any its legal sense. It is manifest that if, in the alternaState law imposing such a license tax is repugnant totive, she takes under the will alone, she cannot assert the Federal Constitution, and void. They say that a valid claim upon the property which is not embraced this is no unjust restriction upon the taxing power of in the will, and which could not be the subject of the States, but merely the subjection of the States to testamentary disposition. The force and intent of the the Constitution of the United States in the matter of aforegoing enactinents, and others of like purport and inter-State commerce. It meets the objection that the effect, as operating to bar the widow's dower in lands law makes no unjust discrimination between domestic aliened by the husband during intermarriage, have and foreign drummers, – aud that is perfectly true in been illustrated by numerous authorities in other this instance, - but that all are taxed alike, by an States in the construction of their statutes in relation nounciug the underlying priuciple to be that inter- to dower and wills and of devises for the wife's benefit. State commerce cannot be taxed by the States at all, Steele v. Fisher, 1 Edw. Ch. 435; Palmer v. Voorhis, even though the same amount of tax or license should 35 Barh. 479; Evans v. Pierson, 9 Rich. 9; Avant v. be laid on each class, or on that business which is car Robertson, 2 MoMul. 215; Haynie v. Dickens, 68 Ill. ried on exclusively within the State. It is the negotia 267; Buffington v. Fall River Nat. Bank, 113 Mass. tion, in one State, by samples, of sales of goods in au 246. At variance apparently with the decisions wbich other State, that cannot be taxed. The State license we have herein cited, is the case of Borland v. Nichols, or tax is treated as being an unconstitutional restric 12 Penn. St. 38. Ohio Sup. Ct., June 7, 1887. Corry tion upon the business or calling of introducing into | v. Lamb. Opinion by Dickman, J.