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foundation of the government, as exemplified in State laws in relation to pilots and pilotage and health and quarantine laws.

But conceding the weight properly to be ascribed to the judicial utterances of this eminent jurist, we are constrained to say that the distinction between subjects in respect of which there can be of necessity only one system or plan of regulation for the whole country, and subjects local in their nature and, so far as relating to commerce, mere aids rather than regulations, does not appear to us to have been sufficiently recognized by him in arriving at the conclusions announced. That distinction has been settled by repeated decisions of this court, and can no longer be regarded as open to re-examination. After all, it amounts to no more than drawing the line between the exercise of power over commerce with foreign nations and among the States and the exercise of power over purely local commerce and local concerns.

The authority of Peirce v. New Hampshire, in so far as it rests on the view that the law of New Hampshire was valid because Congress had made no regulalation on the subject, must be regarded as having been distinctly overthrown by the numerous cases hereinafter referred to.

The doctrine now firmly established is, as stated by Mr. Justice Field, in Bowman v. Chicago, etc., Railway Co., 125 U. S. 507, "that where the subject upon which Congress can act under its commercial power is local in its nature or sphere of operation, such as harbor pilotage, the improvement of harbors, the establishment of beacons and buoys to guide vessels in and out of port, the construction of bridges over navigable rivers, the erection of wharves, piers and docks, and the like, which can be properly regulated only by special provisions adapted to their localities, the State can act until Congress interferes and supersedes its authority; but where the subject is national in its character, and admits and requires uniformity of regulation, affecting alike all the States, such as transportation between the States, including the importation of goods from one State into another, Congress can alone act upon it and provide the needed regulations. The absence of any law of Congress on the subject is equivalent to its declaration that commerce in that matter shall be free. Thus the absence of regulations as to inter-State commerce with reference to any particular subject is taken as a declaration that the importation of that article into the States shall be unrestricted. It is only after the importation is completed, and the property imported is mingled with and become a part of the general property of the State, that its regulations can act upon it, except so far as may be necessary to insure safety in the disposition of the import until thus mingled."

The conclusion follows that, as the grant of the power to regulate commerce among the States, so far as one system is required, is exclusive, the States cannot exercise that power without the assent of Congress, and, in the absence of legislation, it is left to the courts to determine when State action does or does not amount to such exercise, or, in other words, what is or is not a regulation of such commerce. When that is determined, controversy is at an end. Illustrations exemplifying the general rule are numerous. Thus we have held the following to be regulations of inter-State commerce: A tax upon freight transported from State to State, Case of the State Freight Tax, 15 Wall. 232; a statute imposing a burdensome condition on shipmasters as a prerequisite to the landing of passengers, Henderson v. Mayor, etc., 92 U. S. 259; a statute prohibiting the driving or conveying of any Texas, Mexican or Indian cattle, whether sound or diseased, into the State between the 1st day of March and the 1st day of November in each year, Railroad Co. v. Husen, 95 U. S. 465; a statute requiring every auctioneer to col

lect and pay into the State treasury a tax on his sales, when applied to imported goods in the original packages by him sold for the importer, Cook v.Pennsylvania, 97 U. S. 566; a statute intended to regulate or tax or to impose any other restriction upon, the transmission of persons or property, or telegraphic messages, from one State to another, Wabush, etc., Railway Co. v. Illinois, 118 U. S. 557; a statute levying a tax upon non-resident drummers offering for sale or selling goods, wares or merchandise by sample, manufactured or belonging to citizens of other States, Robbins v. Shelby Taxing District, 120 U. S. 489.

On the other hand, we have decided, in County of Mobile v. Kimball, 102 U. S. 691, that a State statute providing for the improvement of the river, bay and harbor of Mobile, since what was authorized to be done was only as a mere aid to commerce, was, in the absence of action by Congress, not in conflict with the Constitution; in Escanaba Co. v. Chicago, 107 U. S. 678, that the State of Illinois could lawfully authorize the city of Chicago to deepen, widen and change the channel of, and construct bridges over, the Chicago river; in Transportation Co. v. Parkersburg, 107 U. S. 678, that the jurisdiction and control of wharves properly belong to the States in which they are situated unless otherwise provided; in Brown v. Houston, 114 U.S. 622, that a general State tax laid alike upon all prop erty is not unconstitutional, because it happens to fail upon goods, which though not then intended for exportation, are subsequently exported; in Morgan's Steamship Company v. Louisiana Board of Health, 118 U. S. 455, that a State law requiring each vessel passing a quarantine station to pay a fee for examination as to her sanitary condition and the ports from which she came, was a rightful exercise of police power; in Smith v. Alabama, 124 U. S. 465, and in Railway Co. v. Alabama, 128 id. 96, that a State statute requiring locomotive engineers to be examined and obtain a license was not in its nature a regulation of commerce; and in Kimmish v. Ball, 129 U. S. 217, that a statute providing that a person having in his possession Texas cattle, which had not been wintered north of the southern boundary of Missouri at least one winter, shall be liable for any damages which may accrue from allowing them to run at large, and thereby spread the disease known as the Texas fever was constitutional.

We held also in Welton v. State of Missouri, 91 U. S. 275, that a State statute requiring the payment of a license tax from persons dealing in goods, wares and merchandise, which are not the growth, produce or manufacture of the State, by going from place to place to sell the same in the State, and requiring no such license tax from persons selling in a similar way goods which are the growth, produce or manufacture of the State, is an unconstitutional regulation; and to the same effect in Walling v. Michigan, 116 U. S. 446, in relation to a tax upon non-resident sellers of intoxicating liquors to be shipped into a State from places without it. But it was held in Patterson v. Kentucky, 97 U. S. 501, and in Webber v. Virginia, 103 id. 344, that the right conferred by the patent laws of the United States did not remove the tangible property in which an invention might take form from the operation of the laws of the State, nor restrict the power of the lat ter to protect the community from direct danger inherent in particular articles.

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In Mugler v. Kansas, 123 U. S. 623, it was adjudged that State legislation which prohibits the manufac ture of spirituous, malt, vinous, fermented or other in toxicating liquors within the limits of the State, to be there sold or bartered for general use as a beverage, does not necessarily infringe any right, privilege or immunity secured by the Constitution of the United States, or by the amendments thereto." And this was in accordance with our decisions in Bartemeyer v. lowa, 18 Wall. 129; Beer Company v. Massachusetts, N

the State governments to determine whether the manufacture of particular articles of traffic, or the sale of such articles, will injuriously affect the public, and it is not for Congress to determine what measures a State may properly adopt as appropriate or needful for the protection of the public morals, the public health, or the public safety; but notwithstanding it is not vested with supervisory power over matters of local administration, the responsibility is upon Congress, so far as the regulation of inter-State commerce is concerned, to remove the restriction upon the State in dealing with imported articles of trade within its limits, which have not been mingled with the common mass of property therein, if in its judgment the end to be secured justifies and requires such action.

U. S. 25, and Foster v. Kansas, 112 id. 201. So in Kidd | gage." Undoubtedly it is for the legislative branch of v. Pearson, 128 id. 1, it was held that a State statute which provided (1) that foreign intoxicating liquors may be imported into the State, and there kept for sale by the importer, in the original packages, or for transportation in such packages and sale beyond the limits of the State; and (2) that intoxicating liquors may be manufactured and sold within the State for mechanical, medicinal, culinary and sacramental purposes, but for no other, not even for the purpose of transportation beyond the limits of the State, was not an undertaking to regulate commerce among the States. And in Eilenbecker v. District Court of Ply- | mouth County, 134 U. S. --, we affirmed the judgment of the Supreme Court of Iowa, sustaining the sentence of the District Court of Plymouth in that State, imposing a fine of $500 and costs and imprisonment in jail for three months, if the fine was not paid within thirty days, as a punishment for contempt in refusing to obey a writ of injunction issued by that court, enjoining and restraining the defendant from selling or keeping for sale any intoxicating liquors, including ale, wine and beer, in Plymouth county. Mr. Justice Miller there remarked: "If the objection to the statute is that it authorizes a proceeding in the nature of a suit in equity to suppress the manufacture and sale of intoxicating liquors which are by law prohibited, and to abate the nuisance which the statute declares such acts to be, wherever carried on, we respond that, so far as at present advised, it appears to us that all the powers of a court, whether at common law or in chancery, may be called into operation by a legislative body for the purpose of suppressing this objectionable traffic; and we know of no hindrance in the Constitution of the United States to the form of proceedings, or to the court in which this remedy shall be had. Certainly it seems to us to be quite as wise to use the processes of the law and the powers of a court to prevent the evil, as to punish the offense as a crime after it has been committed."

These decisions rest upon the undoubted right of the States of the Union to control their purely internal affairs, in doing which they exercise powers not surrendered to the National government; but whenever the law of the State amounts essentially to a regulation of commerce with foreign nations or among the States, as it does when it inhibits, directly or indirectly, the receipt of an imported commodity or its disposition before it has ceased to become an article of trade between one State and another, or another country and this, it comes in conflict with a power which, in this particular, has been exclusively vested in the general government, and is therefore void.

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In Mugler v. Kansas, supra, the court said that it could not "shut out of view the fact, within the knowledge of all, that the public health, the public morals, and the public safety may be endangered by the general use of intoxicating drinks; nor the fact, established by statistics accessible to every one, that the idleness, disorder, pauperism and crime existing in the country are, in some degree at least, traceable to this evil." And that if in the judgment of the Legislature [of a State] the manufacture of intoxicating liquors for the maker's own use, as a beverage, would tend to cripple, if it did not defeat, the effort to guard the community against the evils attending the excessive use of such liquors, it is not for the courts, upon their views as to what is best and safest for the community, to disregard the legislative determination of that question. * * *Nor can it be said that government interferes with or impairs any one's constitutional rights of liberty or of property, when it determines that the manufacture and sale of intoxicating drinks, for general or individual use, as a beverage, are, or may become, hurtful to society, and constitute therefore a business in which no one may lawfully en

Prior to 1888 the statutes of Iowa permitted the sale of foreign liquors imported under the laws of the United States, provided the sale was by the importer in the original casks or packages, and in quantities not less than those in which they were required to be imported; and the provisions of the statute to this effect were declared by the Supreme Court of Iowa, in Pearson v. International Distillery, 72 Iowa, 354, to be "intended to conform the statute to the doctrine of the United States Supreme Court, announced in Brown v. Maryland, 12 Wheat. 419, and License Cases, 5 How. 504, so that the statute should not conflict with the laws and authority of the United States. But that provision of the statute was repealed in 1888, and the law so far amended that we understand it now to provide that, whether imported or not, wine cannot be sold in Iowa except for sacramental purposes, nor alcohol except for specified chemical purposes, nor intoxicating liquors, including ale and beer, except for pharmaceutical and medicinal purposes, and not at all except by citizens of the State of Iowa, who are registered pharmacists and have permits obtained as prescribed by the statute, a permit being also grantable to one discreet person in any township where a pharmacist does not obtain it.

The plaintiffs in error are citizens of Illinois, are not pharmacists, and have no permit, but import into Iowa beer which they sell in original packages, as described. Under our decision in Bowman v. Chicago, etc., Railway Co., supra, they had the right to import this beer into that State, and in the view which we have expressed they had the right to sell it, by which act alone it would become mingled in the common mass of property within the State. Up to that point of time, we hold that in the absence of congressional permission to do so, the State had no power to interfere by seizure, or any other action, in prohibition of importation and sale by the foreign or non-resident importer. Whatever our individual views may be as to the deleterious or dangerous qualities of particular articles, we cannot hold that any articles which Congress recognizes as subjects of inter-State commerce are not such, or that whatever are thus recognized can be controlled by State laws amounting to regulations, while they retain that character; although, at the same time, if directly dangerous in themselves, the State may take appropriate measures to guard against injury before it obtains complete jurisdiction over them. To concede to a State the power to exclude, directly or indirectly, articles so situated, without congressional permission, is to concede to a majority of the people of a State, represented in the State Legislature, the power to regulate commercial intercourse between the States, by determining what shall be its subjects, when that power was distinctly granted to be exercised by the people of the United States, represented in Cougress, and its possession by the latter was considered essential to that more perfect Union which the Constitution was adopted to create. Undoubtedly there is difficulty in drawing the line between the municipal

powers of the one government and the commercial powers of the other, but when that line is determined, in the particular instance, accommodation to it, without serious inconvenience, may readily be found, to use the language of Mr. Justice Johnson in Gibbons v. Ogden, 9 Wheat. 1, 238, in "a frank and candid cooperation for the general good."

The legislation in question is to the extent indicated repugnant to the third clause of section 8 of article 1 of the Constitution of the United States, and therefore the judgment of the Supreme Court of Iowa is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

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Before the exhibition defendant distributed tickets to the public, free, each ticket entitling the holder to a chance for the prizes, eight in number, there being some eight thousand tickets. The distribution was made by choosing two persons from the audience, who selected by lot eight tickets from a large number of duplicates which were thrown by the defendant at random on the stage. These tickets were numbered, and the person holding the corresponding numbers were entitled to the prizes, according to their number. Held not a lottery, such as to render defendant liable to indictment, as there was no consideration paid directly or indirectly for the chance of participating in the distribution.

was said, after citing Webster's definition, that "wherever chances are sold, and the distribution of prizes determined by lot, this, it would seem, is a lottery. This, we think, is the popular acceptation of the term." In Bishop on Statutory Crimes, section 952, it is said: "A lottery may be defined to be any scheme whereby one, in paying money or other valuable thing to another, becomes entitled to receive from him such a return in value, or nothing, as some formula of chance may determine." In Hull v. Ruggles, 56 N. Y. 424, the New York Court of Appeals adopts the following as the result of the accepted definitions: "Where a pecuniary consideration is paid, and it is to be determined by lot or chance, according to some scheme held out to the public, what and how much he who pays the money is to receive for it, that is a lottery." This definition is approved in Wilkinson v. Gill. 74 N. Y. 63, as the popular meaning of the word, and one proper to be adopted with a view of remedying the mischief intended to be prevented by the statutes prohibiting lotteries; and it is said: " Every lottery has the characteristics of a wager or bet, although every bet is not a lottery."

It may be safely asserted, as the result of the adjudged cases, that the species of lottery, the carrying on of which is intended to be prohibited as criminal by the various laws of this country, embraces only schemes in which a valuable consideration of some kind is paid, directly or indirectly, for the chance to draw a prize. United States v. Olney, 1 Deady, 461: 1 Abb. (U. S.) 275; Governors, etc., v. Art Union, 7 N. 1. 228; Ehrgott v. Mayor, 96 id. 264; 48 Am. Rep. 62; Bell v. State, 5 Sneed, 507; Com. v. Thacher, 97 Mass. 583. There is no law which prohibits the gratuitous distribution of one's property by lot or chance. If the distribution is a pure gift or bounty, and not in name or pretense merely, which is designed to evade the law -if it be entirely unsupported by any valuable con

APPEAL from City Court of Mobile, Seemes, J. Insideration moving from the taker-there is nothing in

dictment for carrying on a lottery. The indictment in this case charged, in a single count, that the defendant "set up, or was concerned in setting up or carrying on, a lottery, against the peace," etc. On all the evidence adduced, which it is unnecessary to state, the defendant requested the court to instruct the jury that, if they believed the evidence, they must find him not guilty, which charge the court refused, and the defendant duly excepted. Many other charges were asked and refused, and exceptions reserved, but they require no notice. The opinion of this court suffieiently sets forth such other facts as may be necessary to a complete understanding of this decision.

McCarron & Lewis and B. M. Allen, for appellant. Attorney-General Martin and Leslie B. Sheldon, for the State.

SOMERVILLE, J. The defendant was convicted of the offense of carrying on a lottery in this State. The case turns largely on what is to be taken as a proper definition of the word "lottery," within the meaning of the statute and the Constitution of Alabama. Code 1886, §§ 4068, 4069; Const. 1875, art. 4, § 26. The word cannot be regarded as having any technical or legal signification different from the popular one. It is defined by Webster as "a distribution of prizes by lot or chance." This definition is substantially adopted by Bouvier and Rapalje in their law dictionaries. Worcester defines it as "a distribution of prizes and blanks by chance; a game of hazard in which small sums are ventured for the chance of obtaining a larger value." So the American Cyclopedia thus defines a lottery: "A sort of gaming contract, by which for a valuable consideration, one may, by favor of the lot, obtain a prize of a value superior to the amount or value of that which he risks." In Buckalew v. State, 62 Ala. 334, it

this mode of conferring it which is violative of the policy of our statutes condemning lotteries or gaming. We may go further and say that there would seem to be nothing contrary to public policy, or per se morally wrong, in the determination of rights by lot. A member of the College of Christian Apostles, as sacred history informs us, was once chosen by lot. And under the law of this State a tie vote on a contested election of any State officer is required to be settled in the same mode. So our statutes authorize a distribution of property owned by joint tenants to be made by lot under the direction of the judge of probate. These are not the evils against which the law is directed. The gratuitous distribution of money or property by lot bas never prevailed to such extent as to require police regulation at the hands of the State, nor, so long as human nature remains as it now is and has been for so many thousand years, is it likely ever to be otherwise. The history of lotteries for the past three centuries in England, and for nearly a hundred years in America, shows that they have been schemes for the distribu tion of money or property by lot in which chances were sold for money, either directly or through some cunning device. The evil flowing from them has been the cultivation of the gambling spirit-the hazarding of money with the hope by chance of obtaining a larger sum-often stimulating an inordinate love of gain, arousing the most violent passions of one's baser nature, sometimes tempting the gambler to risk all he possesses on the turn of a single card or cast of a single die, and "tending, as centuries of human experi ence now fully attest, to mendicancy and idleness on the one hand, and moral profligacy and debauchery on the other. Johnson v. State, 83 Ala. 65. It is in the light of these facts, and the mischief thus intended to be remedied, that we must construe our statutory and constitutional prohibitions against lotteries and de

that no money was paid, directly or indirectly, for the chance of receiving a prize, or of participating in the distribution by lot. Nor would a jury be authorized to make a contrary inference, reasonably, from any evidence contained in the bill of exceptions. Many rulings of the court are directly opposed to these views. It follows from what we have said that the City Court erred in not giving the general affirmative charge requested by the defendant.

vices in the nature of lotteries. Ehrgott v. Mayor, 48 just after the close of the exhibition or performance Am. Rep. 622. The cases on this subject are very nu- proper. The element of gaming which is wantmerous, and while the courts have shown a general dis-ing to constitute this transaction a lottery is the fact position to bring within the term "lottery "every species of gaming involving a distribution of prizes by lot or chance, and which comes within the mischief to be remedied-regarding always the substance and not the semblance of things so as to prevent evasions of the law-we find no decision in which the element of a valuable consideration parted with, directly or indirectly, by the purchaser of a chance, does not enter into the transaction. Buckalew v. State, 62 Ala. 334; State v. Bryant, 74 N. C. 207; Com. v. Wright, 50 Am. Rep. 306; State v. Clarke, 66 Am. Dec. 723; State v. Shorts, 90 id. 668; Wilkinson v. Gill, 30 Am. Rep. 264; Governors v. Art Union, 7 N. Y. 228; State v. Mumford, 73 Mo. 647: Hull v. Ruggles, 56 N. Y. 424; Thomas v. People, 59 Ill. 160; Dunn v. People, 40 id. 465; Seidenbender v. Charles, 8 Am. Dec. 682; United States v. Olney, 1 Deady, 461; Bell v. State, 5 Sneed, 507: Bish. St. Crimes (2d ed.), § 952; 2 Whart. Crim. Law (9th ed.), $1491.

The judgment of conviction is reversed, and a judg ment will be rendered in this court discharging the defendant from further prosecution under the present indictment.

Reversed and rendered.

NEW YORK COURT OF APPEALS AB-
STRACTS.

ADMINISTRATOR-OF DECEASED ADMINISTRATORACCOUNTING.-An application under the Code of Civil Procedure of New York, section 2606, for accounting

In this case it is not denied that the defendant has distributed presents or prizes to the holders of tickets given to the public-eight prizes among some eight thousand ticket-holders. It is also uncontroverted that this distribution has been made by lot or chance. This was done by two children chosen from the audi-against the administrator of a deceased guardian, may ence, who selected by lot eight tickets from a large number of duplicates which were thrown by the defendant at random on the stage or platform. These tickets were numbered, and the persons holding the corresponding numbers were entitled to these prizes, or presents, according to their number. But we can see nothing in the evidence from which it can be inferred that any one, present or absent, paid any valuable consideration, directly or indirectly, for these tickets, or for the chance of getting a prize. It is true, that on the day of the drawing, the defendant had held one of his customary performances, consisting of acrobatic contortions, exhibitions of a magic lantern, and of music, dancing and song, and the like; and between the acts he always sold his medicines for which he claimed great curative virtues. These exhibitions were in a tent which would seat between nine hundred and one thousand people, and would furnish standing room for about two thousand five hundred persons. For tickets of admission to see this performance, the closing one of the season, advertised as a "Jubilee" performance, a charge of ten cents was made. But these tickets had no connection whatever with those entitling the holders to a chance for the eight prizes. For these latter tickets or chances nothing was charged. They had been distributed, free, to any and all persons present at his previous performances, and for admission to these exhibitions no charge was made. The only fee charged was for the occupancy of a seat; there was none for entrance. Nor was it necessary that a holder of a successful ticket should be present to get his prize in case he drew one. It would be delivered as well at the defendant's private house. This fact was advertised in a Mobile paper, and one of the prizes was actually delivered there. The suspicion, even though well founded, that these presents may have been given away in order to induce a larger crowd to assemble at the defendant's performances, with the expectation that they would buy medicines, or pay a fee for occupying a seat in the tent, would be too remote to constitute a legal consideration for the tickets. So with the expectation that it would increase the attendance at the so-called Jubilee" performance. The holders of thousands of these tickets given away as gratuitous, were not present, and yet stood an equal chance in the distribution with those who were. And the doors were thrown open for free admission when the distribution took place, this event, occurring

be made immediately upon his appointment as administrator of his decedent. March 4, 1890. In re Wiley, Opinion per Curiam.

ADVERSE POSSESSION - TAX-LEASE. — (1) Possession under a tax-lease is not, during the lease, adverse to the owner in fee, and it is immaterial that the lease was void for irregularities in the tax proceedings. (2) Evidence that the lessee executed a quit-claim deed of his interest, and at the same time assigned the lease, subject to the rents and covenants therein contained, warrants the inference that all he intended to convey was his term under the lease; and the fact that he resumed possession of the premises without any reconveyance is not conclusive evidence that he intended then to assert an absolute title to the land, but it must be presumed, in the absence of other proof, that his possession was under the lease, and not adverse. March 11, 1890. Doherty v. Matsell. Opinion by Earl, J. Affirming 54 N. Y. Super. Ct. 17.

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APPEAL AMENDMENT OF RECORD.-After the record has been filed pursuant to the notice of appeal, the court below so far retains jurisdiction as to enable it to amend the record, and to order the amendment certified to the Court of Appeals, and filed with the clerk of that court. A motion therefore to remit the record for the purpose of an amendment is unnecessary. March 21, 1890. Peterson v. Swan. Opinion by Peckham, J.

FROM INTERLOCUTORY JUDGMENT ON REPORT OF REFEREE.-(1) The Code of Civil Procedure of New York, section 1001, providing that where the report, rendered on the trial of an issue of fact by a referee, directs an interlocutory judgment to be entered, and further proceedings must be taken before a final judgment can be entered, a motion for a new trial, upon one or more exceptions, may be made at the General Term, after the entry of the interlocutory judg ment, and before the hearing directed therein, gives the General Term power to review an interlocutory judgment on the report of a referee, on questions of law presented by the exceptions, but not on questions of fact. (2) The Code of Civil Procedure of New York, section 1349, providing that an appeal may be taken to the General Term of the Supreme Court, or a Superior City Court, "from an interlocutory judg nent rendered at a Special Term or Trial Term of the

same court, or, in the Supreme Court, at a term of the Circuit Court," does not authorize the General Term to review an interlocutory judgment on the report of a referee. Rayner v. Rayner, 94 N. Y. 248. (3) Where, on appeal from an interlocutory judgment on report of a referee, under the Code of Civil Procedure of New York, section 1001, giving authority to review such a judgment only on questions of law, the General Term fails to consider the questions of law and reverses the judgment on the facts, the Court of Appeals, since under the Code of Civil Procedure of New York, section 190, it has jurisdiction to review every "actual determination" of the General Term, cannot therefore dismiss the appeal, but will reverse the judgment, and send the case back for a hearing on the questions of law. April 15, 1890. Dorchester v. Dorchester. Opinion by O'Brien, J. Reversing 3 N. Y. Supp. 238.

APPEAL-DIVORCE-ALIMONY.-(1) An order of the General Term, reversing an order of the Special Term, denying a motion for a temporary allowance and counsel fee in an action for a divorce, and remitting the case to the Special Term for a decision upon the merits, is not final, and no appeal lies from it to the Court of Appeals. (2) Where a judgment of limited divorce has been granted to the wife, and the husband has appealed, the action is pending until the final determination of the appeal, within the meaning of the Code of Civil Procedure of New York, section 1769, which authorizes the court, during the pendency of the action, to make orders directing the husband to pay such sums as may be necessary to enable the wife to prosecute or defend the action. The Special Term followed the decision in Winton v. Winton, 31 Hun, 290, and some other cases in the Supreme Court, which merge every right of the plaintiff in the final judgment, and deny the power of the court thereafter to make a temporary allowance. No case in this court appears to have decided the question. In Kamp v. Kamp, 59 N. Y. 212, and Erkenbrach v. Erkenbrach, 96 id. 456, the applications were made many years after judgment, in the absence of any appeal, and when by lapse of time no appeal was possible. The actions were no longer pending, jurisdiction over the parties had ceased, and all questions as to alimony were decided by and referable to the judgments entered. But in this case, although a judgment, final for the purposes of an appeal, is entered, the action is still pending. The jurisdiction over the parties remains through the further steps regularly taken, and the action is in no sense or respect ended. By the terms of section 1769 of the Code, the allowance may be made "from time to time during the pendency "of the action, and is described as necessary to enable the wife to carry on or defend the action." That is one of the purposes to be subserved, and the need of it is quite as pressing and obvious after judgment, and pending the appeal, as before. It could not have been contemplated that before judgment the wife should be aided in maintaining her rights, but after judgment in her favor should be left to starve during the pendency of an appeal, and should be disarmed by her very success from defending the judgment in her favor. The suggestions that by granting the motion the defendant's stay of proceedings will be violated and impaired, and that if the judgment is affirmed he may in effect be compelled to pay the same amount twice over, have these answers: that the allowance sought is temporary, and may be much less than the permanent alimony which has been stayed; and the court, in the exercise of its discretion, may and should require, as a condition of the allowance, that the plaintiff stipulate that the sums allowed shall, in case of an affirmance of the judgment, be applied by her as payment pro tanto thereon. March 11, 1890. McBride v. McBride. Opinion by Finch, J. Affirming 8 N. Y. Supp. 448.

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ASSESSMENT — CORRECTION OF ERROR.-(1) Where a board of assessors, by mistake, include in their assessment list a lot not within the district of assessment fixed for the assessment of the expenses of an improvement, the error will be deemed "clerical," within the meaning of the charter of the city of Brooklyn (title 10, § 10), making it the duty of the board to rectify any errors committed in the laying of any tax and assessment "where the error is entirely clerical." (2) Mandamus is the proper remedy of the owner of the land so included in the assessment to compel the correction of the error, and the collector of taxes is properly joined in the proceeding to restrain him from collecting the illegal tax. (3) Title 18, section 36 of the charter, declaring an assessment that has been confirmed by the common council to be "final and conclusive," does not apply where the assessment is entirely void. March 11, 1890. People, ex rel. Nostrand, v. Wilson. Opinion per Curiam. Affirming 7 N. Y. Supp. 627.

CONTRACT-GOOD WILL-ACCOUNT STATED.-(1)Plaintiffs, glove manufacturers in Paris, sold out the stock in trade and good-will of their New York business to defendant, and agreed to sell him their gloves upon terms as favorable as to any other person, and "that so long as" defendaut should continue the business purchased by him, they would not sell their gloves to any other person. Defendant agreed not to purchase gloves of the same grade, "so long as " plaintiffs should continue to manufacture such gloves and furnish them to him. Held, that plaintiffs' undertaking to furnish gloves to defendant was dependent upon their continuance to manufacture them, and that a contrary im. plication could not be given the contract, although the reputation of plaintiffs' gloves may have been the inducing cause of defendant's purchase. (2) An account presented to and acquiesced in by the debtor does not lose its character as an account stated, by reason of its including installments of purchase-money not yet due, where it appears that it was the understanding of the parties that the purchase-money and the current dealings between them should go into the same account, for the purpose of ascertaining what amount remained unpaid. Lockwood v. Thorne, 18 N. Y. 285; Young v. Hill, 67 id. 162; Samson v. Freedman, 102 id. 699. If when the contract was introduced in evidence the performance, subsequently to the time of the rendition of the account, of any covenant on the part of the plaintiffs was required to support their claim to recover, they had the burden of proving such performThe defendant does not, in his answer, allege any breach of the contract, but does charge that he was induced to make the purchase of the New York stock of goods and take the business upon the belief, which the plaintiffs fraudulently induced him to entertain, that they would continue to manufacture and furnish him gloves for a course of years; but in fact they then intended not to continue to so manufacture gloves, and supply him with them, and concealed such purpose from him. The issue of fraud was found against the defendant, and such finding of the referee had the support of evidence. It is however argued by the defendant's counsel that the plaintiffs undertook by the contract to continue to manufacture gloves and furnish him with them for his trade; and that when they ceased and refused to do so they were chargeable with a breach of the contract. They did not in express terms undertake to sell him gloves for any specified time, but they did agree to sell to him gloves manufactured by them upon terms equally as favorable as they sold them to any other party, and that so long as the defendant should continue in the business in the city of New York they would sell to no other person in the United States. It is not essential to mutuality of covenant that the

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