daughter, which will entitle her children to their mother's share (had she lived) in the estate of the testatrix; and this, I think, is the true construction of the will. The following are some of the cases and authorities which may be consulted with interest upon the questions involved, as they are not free from doubt: 2 Redf. Wills, 44, 45, 78, 79; Johnson v. Johnson, 3 Hare, 157; 1 Jarm. Wills, 328; Branson v. Hill, 31 Md. 190; Moore v. Lyons, 25 Wend. 119; Bridge v. Abbott, 3 Brown, Ch. Cas. 224; Smith v. Palmer, 7 Hare, 225; King v. Cleveland, 26 Beav. 26; Holloway v. Radcliffe, 23 id. 163; King v. Cleveland, 4 DeGex & J. 477; Winter v. Winter, 5 Hare, 306; Edwards v. Symonds, 6 Taunt. 213; Garey v. Whittingham, 5 Beav. 268; Locker v. Bradley, id. 593; Stopford v. Chaworth, 8 id. 331; Salisbury v. Petty, 3 Hare, 93; Jarvis v. Pond, 9 Sim. 549; Coulthurst v. Carter, 15 Beav. 421; Ive v. King, 16 id. 54; Barnes v. Ottey, 1 Mylne & K. 464; Gray v. Garman, 2 Hare, 268; Harrison v. Foreman, 5 Ves. 207; Cotton v. Cotton, 2 Beav. 67; Bond's Appeal, 31 Conn. 183; Ram Wills, 96; Gittings v. McDermott, 2 Mylne & K. 69; Doe v. Wilkinson, 2 Term R. 209; Doe v. Dring, 2 Maule & S. 448; 2 Jarm. Wills, 742; Bender v. Dietrick, 7 Watts & S. 284; Howard v. Amer. Peace Society, 49 Me. 288; Areson v. Areson, 3 Denio, 458; Minter's Appeal, 40 Penn. St. 111; Lessee of Hauer v. Sheetz, 5 Bin. 546; Russell v. Long, 4 Ves. Jr. 551; Roebuck v. Dean, 2 id. 264; Fisher v. Hill, 7 Mass. 86; Ballard v. Ballard, 18 Pick, 41; Hooper v. Hooper, 9 Cush. 122; Moore v. Weaver, 16 Gray, 305; Esty v. Clark, 101 Mass. 36; Wimple v. Fonda, 2 Johns. 288. The views here expressed are not in conflict with the decisions of this court heretofore made: Eberts v. Eberts, 42 Mich. 404; 4 N.W. Rep. 172; Rood v. Hovey, 50 Mich. 395; 15 N. W. Rep. 525; Porter v. Porter, 50 Mich. 456; 15 N. W. Rep. 550; Ireland v. Parmenter, 48 Mich. 631; 12 N. W. Rep. 883; Toms v. Williams, 41 Mich. 564; 2 N. W. Rep. 814; Conrad v. Long, 33 Mich. 80. The law favors that construction of a will which will make a distribution as nearly conform to the general rule of inheritance as the language will permit; and favors equities rather than technicalities. Letchworth's Appeal, 30 Penn. St. 175; Johnson v. Ballou, 28 Mich, 392. Rivenett v. Bourquin. Opinion by Sherwood, J.

[Decided March 6, 1884.]

RECENT ENGLISH DECISIONS.

TENANTS IN COMMON-USE AND OCCUPATION BY ONE -CONTRIBUTION FOR REPAIRS.-The defendant became tenant to the plaintiff under a lease of an undivided three-fourths of certain premises to which the plaintiff was entitled as tenant in common with another. During the lease the defendant purchased the interest of the plaintiff's co-tenant in common. On the expiration of the lease the defendant continued in occupation of the above three-fourths as tenant at sufferance to the plaintiff. Held, that the plaintiff was entitled to recover for the use aud occupation by the defendant of the above undivided three-fourths. A tenant in common is only liable to contribute towards the cost of repairing the common property incurred in by his co-tenant, where such repairs are necessary to prevent ruin and preserve the common property. Q. B. Div., Dec. 10, 1883. Leigh v. Dickeson. Opinion by Pollock, B. [50 L. T. R. (N. S.) 124.] (See 1 Alb. L. J. 499.)

NUISANCE-NOISE OF CATTLE-RAILROAD-STATUTORY POWER-INJUNCTION.-A railway company caused a nuisance to their neighbors by the noise of the cattle received, detained and forwarded by them

at and from a cattle dock and siding on land outside their limits of deviation, but acquired under a parliamentary power to purchase land for that purpose by agreement. There was no negligence on the part of the company in managing the cattle traffic, but they brought no evidence to show that some other site might not have been selected where the nuisance would not be caused. Held, that the company might be restrained from carrying on their cattle traffic on the premises in question so as to cause a nuisance. Hammersmith v. Brand L. R., 4 E. & I. App. 192; Geddis v. Baun L. R., 3 App. Cas. 445; 24 Eng. R. 320; Normantown, etc., v. Pope, 48 L. T. R. (N. S.) 666; Chy. Div., Dec. 17, 1883. Truman v. London. Opinion by North, J. [50 L. T.Rep. (N. S.) 89.]

COVENANT-" AGAINST ANY TRADE OR BUSINESS HOME FOR GIRLS-BREACH.-In the lease of a house was contained a covenant not to use the premises for any trade or business of any description whatsoever without the consent in writing of the lessor. The trustees of a charitable institution which existed only for the purpose of providing homes for working girls in London, and which possessed and managed numerous houses at which inmates were provided with board and lodging in return for an unremunerative payment, proposed to use the house in question as a free home, at which no payment should be made. Held, that such user would be a breach of the restrictive covenant. Semble, the application of the words "any business of any description whatever" in a restrictive covenant extends to the user of the premises, the subject of the covenant, for any purpose outside, and diverse from ordinary domestic life. Chy. Div., March 8, 1884. Rolls v. Miller. Opinion by Pearson, J. [50 L. T. R. (N. S.) 152.]

CORRESPONDENCE.

AN EXCEPTION.

Editor of the Albany Law Journal:

"We would gladly see Wall street and all that therein is, sunk in its neighboring Hell-Gate." 29 Alb. L. J., p. 421.

Great Heavens, what have we done?

Yours,

GOODRICH, DEADY & PLATT, 59 and 61 Wall st., New York.

NEW YORK, May 31, 1884.

[We would not, of course, include the righteous men, i. e., the lawyers, in our aspiration against Sodom.-ED. ALB. LAW JOUR.]

IS LIGHTNING FIRE?

Editor of the Albany Law Journal:

I tried an insurance case at the Montgomery County Circuit last week before Hon. Judson S. Landon, justice, and a jury, which involves a nice question of science as well as of law. The action was brought by a policy holder in the Farmers' Insurance Company of the town of Palatine, against said company to recover the value of a team of horses killed by lightning in June last. The policy provides for an insurance against loss or damage, "by or by reason of fire," and "by fire by lightning." The evidence showed that the horses in question were standing in the stable of their owner tied to the manger by halters during a thunder storm, and lightning struck the building,

shattering the peak of the gable end of the roof, ran down the siding in front of the horses and killed them. The horses were found a few minutes afterward lying dead. No part of the building was burned, except the siding in a few places was a little charred; nothing was burned in the stable or about the stalls. The bodies of the horses were perfect, except the hair on the ears inside and out was singed, also the foretops and a few inches of the manes were singed and curled. The skin was not broken on either horse. Their bodies were not opened to disclose their internal condition. A strong smell of, sulphur pervaded the stable after the stroke.

The presiding judge after some hesitation refused to nonsuit, and submitted the case to the jury to determine whether the horses were killed by fire, and whether lightning is fire.

The jury found a verdict for the plaintiff, thereby deciding that lightning is fire.

I suppose and still believe that a cause of action was not established under the policy, and I cannot subscribe to this new adjudication, that lightning is fire, in the light of present scientific information as to the character and quality of lightning.

The case of Babcock v. Montgomery County Mut. Ins. Co., 6 Barb. 637; samo case affirmed in the Court of Appeals, 4 N. Y. 326, I think is against the proposition, and is authority for the rule that to sustain an action for loss by fire by lightning, there must be an actual combustion or burning by fire sufficient to produc the loss complained of, and that there can be no recovery in such case merely for loss resulting from the heat or mechanical effect of lightning, which is simply atmospheric clectricity in unrestrained action. The case will undoubtedly bo appealed, and the importance of the question involved to the profession and to insurers has induced me to give it to your readers for their interest and investigation in its legal and scientific aspects.

"GIVE ME LIBERTY," ETC.

Editor of the Albany Law Journal:

I am fearful that I may be burdening your valuable pages; but as Mr. G. Wilcoxen of Seneca Falls, N. Y., in the JOURNAL of the 24th instant, questions my allusion to the celebrated sentence uttered by Patrick Henry, "Give me liberty," etc., I wish to state that while Wm. Wirt was a florid and graceful writer, he had no superior as a pains-taking biographer. He commenced gathering his material for his "Life and Character of Patrick Henry" as early as the year 1805, and in 1814 sat down to the serious work of carefully gathering from the mass of his material, and not until the year 1817 did he venture to publish. His material facts were gathered from living witnesses, former associates of the great orator, and the address was made at an assembly of delegates in the old St. Johns' Church in Richmond, Va., on Monday, the 20th day in March, 1775. The speech was furnished to the author by Judge Tucker, who was a witness of the remarkable scene, and fills more than two pages of the edition of the work in my possession, and Mr. Wirt gives the speech as reported to him by this intelligent gentleman, who doubtless, like many other careful observers of great events, wrote down at the time, the leading features of the address, that made such a deep impression upon the whole country at a very critical period. That this sentence was the utterance of Patrick Henry is as certainly true and authentic as any other historic fact. No one doubts that at a critical period Danton

aroused the National convention, as also the people of France, "with a voice," as Carlyle says, "that echoed from the domes and dashed Brunswick across the marshes," when the Prussian forces and the hated Emigrees had passed the frontier and taken Verdun. "It is no time," shouted Danton "for timid, hesitating counsels and unmanly fears. It's a time for heroic courage and daring. We must dure and again dare and always dare." Will Mr. Wilcoxen contend that the above sentence is not authentic? This is no "school-boy error, but historic fact, and not better authenticated than the entire speech of Henry. W. F. WARNer.

WAVERLY, N. Y., May 29, 1884.

THEA

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Tuesday, June 3, 1884:

Motion for reargument denied-John Roach and others, respondents, v. John H. Duckworth, and another, executors, appellants.-Denied-In re John Percy to set aside order Disbursing.―Judgment reversed, new trial granted, costs to abide the eventShepherd's Fold, appellant, v. Mayor, etc., of New York, respondents. Judgment affirmed-People, respondents, v. William A. Houghkirk, appellant.Judgment of General Term reversed and that of General Term affirmed, with costs-Charles Wager et al., respondents, v. Eliza H. Wager, impleaded, etc., appellant. Order of General Term reversed and that of Special Term affirmed, with costs-Victor Hein, respondent, v. Alex. V. Davidson, appellant.—Judgment and interlocutory order appealed from reversed and judgment of foreclosure ordered in favor of plaintiff, with costs-Clarence J. Anthony, appellant, v. Frances L. Wood et al., respondents. Judgment reversed and record remitted to the Erie county Oyer and Terminer, with direction to resentence the prisoner under the act of 1875-People, respondent, v. Joseph Bork, appellant.-Order of General Term denying motion of relator to be discharged from imprisonment and remanding him to the custody of the warden of the Auburn State prison reversed, and re lator remanded to the custody of the sheriff of Erie county, to be dealt with according to law-People ex rel. Joseph Bork, apl., v. F. W. Gilbert et al., resps.Judgment of General Term, as far as it modifies the judgment of the referee by holding that the share of the deceased's son in the personal estate bequeathed by his mother belonged on his death to his father, and was not therefore properly chargeable to him, should be reversed; and in other respects the judgment should be affirmed without costs to any of the parties in this court, and the decision is without prejudice to the rights of any party to apply to the Supreme Court for the correction of alleged clerical errors in the judgment of the General Term, as settled-Edward Beardsley et al., assignees, etc., respondents, v. William Hotchkiss et al. and the Geneva National Bank, appellants and respondents. Judgment affirmed- People, respondent, v. Alexander Jefferson, appellant.—Judg ment affirmed with costs-Mary Schweitzer, administratrix, etc., respondent, v. Ernest Sander et al., appellants. Judgment reversed, new trial granted, costs to abide the event-Susannah B. Loveridge, respondent, v. Clayton L. Hill, appellant.-Judgment affirmed with costs-Petition of the United States for the appointment of commissioners, etc.-Judgment affirmed--George Riegard, respondent, v. City of Elmira, appellant.-Judgment affirmed with costs-George W. Nichols et al., respondents, v. N. Y. C. & H. R. Co., appellant.

The Albany Law Journal.

THE

ALBANY, JUNE 14, 1884.

CURRENT TOPICS.

HE case of Eno illustrates the defects of our extradition laws. It is quite exasperating to a large part of the community that a criminal, guilty of so heinous an offense as he is accused of, may escape by crossing into Canada, and may live there in open luxury, almost within sight and hearing of those whom he has defrauded, and laugh at the laws. To be sure, our contemporary, the American Law Review, would insist that to be compelled to live in Canada is a sufficient punishment for the gravest offenses, but we do not think so. It would be well to have our treaties revised, especially our treaties with next-door neighbors, and to have them enlarged so as to comprehend many more offenses than are now covered by them. The advance of "civilization" seems to have made possible some new crimes, undreamed of forty years ago, and just as worthy of relegation to the offended community for punishment as those now recognized. Even some old and familiar crimes might well be added to the list of those for which extradition will lie. It is worth while for sovereign nations to refuse to become asylums and Alsatias for each other's criminals.

We have looked with some curiosity to see what the southern legal press would say of the suicide of Judge Reid of Kentucky. The Virginia Law Journal says: "The dastardly assault upon Judge Reid of Kentucky, by the disappointed lawyer, Cornelison, has ended in the saddest of tragedies. That the unfortunate victim showed a lack of physical courage throughout the affair cannot be denied, but from a moral point of view he had taken a brave stand, which the result proves he had not the moral courage to maintain. That he was not sustained in

this position by the sentiment of the community does not signify, so far as his conduct and example are concerned. With his position, and his conceded ability and worth, the opportunity, which he had apparently embraced, might have been turned to lasting account for good in the community. As it is, its teachings must now be all the other way, unless, indeed, they are happily counteracted by the tirade in which the ALBANY LAW JOURNAL takes occasion to indulge against what it calls the 'blue-grass chivalry of Kentucky.' De mortuis nil nisi bonum is an excellent maxim, but there is another and a better: Fiat justitia, ruat cælum. It is doubtless the very perfection of logic and good morals (when one is 'civilized' up to the point) to condemn and vilify the whole people of a State because an unfortunate individual, under a terrible ordeal, has shown that he lacks both physical and moral courage. Dreadful as it would be for a man of character and worth to slay his ruffianly assailant VOL. 29-No. 24.

in the act of a degrading assault, it must be infinitely worse, in any possible aspect, for him to take his own life instead, while the ruffian goes free." We certainly have not "condemned and vilified a whole people," for there unquestionably are a good many people in Kentucky who did not approve the clamor which would have driven Judge Reid to murder, and did drive him to suicide. We do not agree with the Journal in thinking that a man who has the moral courage to refrain from revengeful murder is to be condemned for a lack of physical courage. We do agree with the Journal that it is a pity that Judge Reid had not the moral courage to adhere to the stand he so bravely took, but it is easy to criticize the martyr at the stake for giving way to unmanly lamentation. We should not have blamed Judge Reid for killing his assailant "in the act," but we should have blamed him for seeking him out afterward and killing him— that would be murder. It is an appalling state of affairs when a judge feels that he is driven by force of public sentiment to commit a murder, and rather than do it takes his own life. Our cool northern communities cannot understand it.

Nobody at the

north ever blamed Charles Sumner for not seeking out and killing his assailant, Brooks. Nobody at the north ever accused him of want of physical courage, and yet he could not have lived peaceably in Kentucky afterward. But backed by public sentiment Charles Sumner lived a long life of usefulness and honor, much more admirable and excellent than if he had gone out with a bludgeon and slain the cur that bit him. The trouble with Kentucky is that she has no admiration for moral courage. Physical courage is her ideal, and unless at the demand of any drunken, angry or fanatical ruffian, a man of scholarly and quiet pursuits, absorbed in an orderly occupation, and unused to deadly weapons, is willing to sally out and kill or be killed- at all events to risk his precious and useful life against the accursed and hellish spirit of his assailant - he is there deemed a coward, and is forthwith ostracised. We would that lawyers and legal journalspirit of barbarity. Undoubtedly it is easy and ists would raise their voices in protest against this safe for us to do so, and perhaps it would not be easy or safe for us to do so if we lived in the community where this spirit rules. We are glad that we live where judges are not bound to vindicate their judicial opinions and their own "courage with shot-guns. And once more we ask, what is going to be done with Judge Reid's assailant? Will he still be recognized as a good citizen and reputable lawyer, or will he be disbarred and punished like the criminal he is? Will the perpetrator of this "dastardly assault" be punished, or will he be rather admired as a sensitive and lion-hearted person? The Kentucky courts and lawyers owe something to themselves on this score.

The Solicitors' Journal thus makes merry over the occasion of the late decision of the United States Supreme Court on the question of copyright in pho

tographs, arising in the Sarony case: "Since Mr. Oscar Wilde's career on the other side of the Atlantic terminated, and he returned over that 'disap-| pointing ocean,' the Supreme Court of the United States has been exercised with a troublesome and important case, arising from the desire of the transatlantic artists to preserve for their sorrowing countrymen the likeness of the classic form they have lost."

Lord Coleridge, it is said, is about to publish a volume of reminiscences of America. This will be eagerly looked for by our people, especially by our lawyers. We have had all sorts of British tourists in this country. A few among them have been either wise, or temperate, or agreeable persons, but until Lord Coleridge's advent we have never found the combination of these three qualities in one person. He certainly never flattered us, and yet he did not seem to go on the principle that nothing good should be said of anybody until he is dead. It will be refreshing to get this view by an Englishman equally removed from the cynical idealism of Mr. Matthew Arnold, and the professional gush of Mr. Henry Irving, to mention two of our most recent

conductor to wake a sleepy passenger, in accordance with his promise, whereby he was carried past his destination, gave no cause of action against the company.

A correspondent calls our attention to the fact that our Legislature have changed the rule laid down in Ballard v. Burgett, 40 N. Y. 314, by chapter 315 of the Laws of 1884. The doctrine of that

case was that a bona fide purchaser of personal prop erty, other than commercial paper, although from one who has possession, acquires no better title than that of his vendor. This legislation settles what has been thought to be rather doubtful in this State, although the doctrine of Ballard v. Burgett is the almost universal doctrine in this country. See 24 Alb. L. J. 264; Lewis v. McCabe, 49 Conn. 140; S. C., 44 Am. Rep. 217; Sumner v. Woods, 67 Ala. 139; S. C., 42 Am. Rep. 104, and note, 105; Stadtfield v. Huntsman, 92 Penn. St. 56; S. C., 37 Am. Rep. 661, and note, 664.

NOTES OF CASES.

N Russell v. Western Union Telegraph Co., Supreme

being equal, we also prefer the views of an observer who does not visit us to make money.

In

In England several very singular cases have recently occupied the courts. In Wood v. Bower, the plaintiff sued a surgeon for negligence, in allowing him to suck a tube during the operation of tracheotomy on his child for diptheria, without warning him of the danger, whereby the father contracted diptheria. The defendant had a verdict. Lusher v. Lusher, the defendant was enjoined from beating carpets within nine feet of a neighbor's premises. Lord Greville was excused from taking possession and paying rent for premises because the occupant's child was ill with measles. In another case a man was held liable for injury done by his cat to his neighbor's chickens.

In this country three singular claims of negligence against railroads have been recently adjudged. In Western Maryland Ry. Co. v. Stanley, 61 Md. 266, a passenger sitting close to the open front door of a crowded car, when passing through a tunnel, attempted to shut the door while the car was in total darkness, in order to keep out the smoke and cinders, and in doing so his arm was driven through the glass, and severely cut. The questions of negligence and contributory negligence were submitted to the jury, and a verdict for the plaintiff was sustained. In Galveston, etc., R. Co. v. Davidson, Texas Supreme Court, it was held that a passenger who unnecessarily placed his hand on the frame work of the open car door, and was injured by the porter's closing the door upon it, was remediless. In Nunn v. Georgia R. Co., Georgia Supreme Court, it was held that the omission of the

408, it was held that in an action of damages against a telegraph company for failure to transmit a despatch announcing the death and funeral of a sister of the person addressed, he could recover nothing for injury to the feelings in being prevented from attending the funeral. The court said: "The counsel for the appellant contends that this neglect of defendant to perform its duty was a tort for which damages, such as are claimed, could be recovered, but we think this position untenable. The complaint alleges a contract, and a violation of said contract as the gist of the action, and it must be so regarded, and cannot be converted into a tort by any rule of law known to the court. No case can be found where a person has been allowed to recover damages for a shock, injury or outrage to the feelings and sensibilities, arising and caused by the breach of a contract, except it is a marriage contract. Such damages can only enter into and become a part of the recovery when the plaintiff has sustained, by the negligence or willful act of another, some corporal or personal injury; they never can be recovered independently and alone, and if recoverable at all, only in actions of tort. Masters v. Warren, 27 Conn. 293; Stewart v. Ripon, 38 Wis. 584. This would be the law without any statute on the subject, but the statute steps in and provides for a case of this kind, and says that 'every person whose message is refused or postponed, contrary to the provisions of this chapter, is entitled to recover from the carrier his actual damages, and fifty dollars in addition thereto.' Civil Code, § 1287. It would seem that the intent of this statute was to fix the right of parties in such cases, and it is doubtless exclusive of all other

modes of procedure. In this case the complaint might be sustained if there was any claim for actual damages that the plaintiff is entitled to recover, and under this statute, if he had made such a claim, he could recover nominal damages, although no actual damages were proved, and the fifty dollars additional, the latter being exclusive of all damages not actual; but as no damages are claimed, except something the plaintiff is not entitled to, the complaint does not state a cause of action." This is in harmony with Gulf, etc., Ry. Co. v. Levy, 59 Tex. 563; 28 Alb. L. J. 192.

In Chamberlain v. Church, Rhode Island Supreme Court, March 1, 1884, it was decided that a statute of Virginia, forbidding non-residents to catch fish for the manufacture of manure and oil, and to manufacture manure and oil from fish caught within the waters of that State, is not in violation of the Federal Constitution as to the rights of citizenship. The court said: "Is the right to take fish, and to manufacture oil therefrom a right of citizenship which is included in this provision of the Constitution? In Corfield v. Coryell, 4 Wash. C. C. 371, the question now before the court was presented. A law of New Jersey declared: 'It shall not be lawful for any person who is not at the time an actual inhabitant and resident in this State, to rake or gather clams, oysters,' etc., in any of the waters of this State. Washington, J., held that the law was not unconstitutional, upon the ground that the right of fishery is a right of property, and not a right of citizenship. The distinction is clear. Under colonial charters the right of fishery was vested in each colony for the benefit of its own people, and was under its own control. This right has never been ceded. The Federal government has control of navigable waters for the purpose of commerce and defense, but the fisheries remain the common property of the people of the State. This question is also thus decided in State v. Medbury, 3 R. I. 138. That case sustained the constitutionality of our own law, which provided that no person should take shell fish from the shores or waters of this State, 'uuless he be an inhabitant thereof and domiciled therein.' The rights which pertain to citizenship are of a notably different character; e. g., the right to transact business in other States. Ward v. Maryland, 12 Wall. 418. The right of acquiring and conveying property; of suing in cou.s; of protection by law; of freedom from discriminating taxes and burdens, and the like. Campbell v. Morris, 3 Har. & McH. 535, 554; Ward v. Morris, 4 id. 330, 341, and cases referred to above. The provision relating to the manufacture of fish oil and manure in this statute might, if it stood alone, come within the doctrine of Ward v. Margland, as to restrictions upon trade and business. But it does not. It is a part of the same section which forbids the taking of fish for the purpose of grinding into oil or manure, and is in aid of the latter provision to prevent its evasion. It only forbids the grind

ing of fish taken in the waters of the State. The object of the law is not to deprive citizens of other States of the right to do business in Virginia, but to protect the fisheries from depletion. The statute is evidently directed against the conversion of fish into merchandise, to be sent abroad for other uses than food. For their own agriculture it may be necessary to allow citizens to take fish for manure. Indeed this very section gives to non-residents owning lands in the State the same rights as residents to take and grind fish for improving and manuring their said lands.' To allow others, however, to engage in that business, to scatter its products, would be quite a different thing."

* *

In Lewin v. Johnson, to appear in 32 Hun, 408, it was held that it is no defense to an action for the purchase-price of whisky, that the purchaser, an innkeeper, having no license, intended to sell the same by the glass in violation of the excise law, and that the seller knew that he had no license, and intended so to sell the whisky purchased. The court said: "The question presented is whether the prior knowledge by a vendor of merchandise that the purchaser intends to make an unlawful use of the articles sold will prevent a recovery of the purchase-price. It is now well settled by the authorities in this State that it will not. The precise question was presented and decided in Tracy v. Talmage, 14 N. Y. 162, where the court laid down this proposition: 'That it is no defense to an action brought to recover the price of goods sold that the vendor knew that they were bought for an illegal purpose, provided it is not made a part of the contract that they shall be used for that purpose, and provided also that the vendor has done nothing in aid or furtherance of the unlawful design. * I think it clear in reason, as well as upon authority, that in a case like this, where the sale is not necessarily per se a violation of law, unless the unlawful purpose enters into and forms a part of the contract of sale the vendee cannot set up his own illegal intent in bar of an action for the purchase-money.' This statement of the law remains undisturbed and unquestioned, and has been frequently referred to since by the same court with approval. In Arnott v. Pittston and Elmira Coal Co., 68 N. Y. 558; S. C., 23 Am. Rep. 190, the rule of law on the question before us was stated to be the same as laid down in Tracy v. Talmage, and substantially in the same language, to wit: 'A vendor of goods may recover for their price, notwithstanding that he knows that the vendee intends an improper use of them, so long as he does nothing to aid in such improper use, or in the illegal plan of the purchaser.' An English case, Hodgson v. Temple, 5 Taunt. 181, directly in point, may be cited, which gives the law in England on the same question. In this case a buyer of spirituous liquors was known to be carrying on a rectifying distillery and a liquor shop at the same time, contrary to law. The vendors of the spirits were