properly permitted to show that one who lived on farm cultivated claimed right of way, interference with defendants' enjoyment of right of way by one in possession under owner having same effect as an interruption of adverse possession as the same act by owner himself.— Waterman v. Moody, Vt., 103 Atl. 325.

35. Prescription.-An easement to maintain a sewer pipe over the land of another cannot arise by prescription, where the use of the land for such purpose did not exist prior to the severance of the unity of ownership, and no necessity for such easement has ever existed.-Heyman v. Biggs, N. Y., 119 N. E. 243.

36. Eminent Domain-Trespass.-Where railway company by increasing its consumption of water taken from plaintiff's water supply injured him, and upon being sued, commenced proceedings to exercise its right of eminent domain, it was none the less a trespasser as against plaintiff.-Norfolk & W. Ry. Co. v. A. C. Allen & Sons, Va., 95 S. E. 406.

37. Equity-Lien.-Where complainant's bill to enforce mechanic's lien alleged that named persons had some interest in premises either as mortgagees or purchasers, but alleged that mortgage was inferior to lien, and evidence indicated that existence of mortgage was uncontroverted, complainant cannot attack decree because of absence of formal proof of mortgage; his pleading amounting to admission of its existence. Turner Const. Co. v. Union Terminal Co., U. S. C. C. A., 248 Fed. 120.

38.

Estates-Dower.-Where owner of land subject to dower and to a mortgage to secure payment of dower interest acquired such interest, and thereafter conveyed subject to the mortgage, the dower and the fee merged, and grantors' personal representative could not maintain assumpsit for dower against the grantee. -Griffith v. McKeever, Pa., 103 Atl. 335.

39. Estoppel-Shipper of Animal.-Shipper of animal was not estopped, by signing receipt, from showing that animal was severely injured, and not, as he first thought, only slightly injured, as he had reasonable time after he received animal to ascertain extent of injury.— Ferebee v. Atlantic Coast Line R. Co., S. C., 95 S. E. 349.

40. Fraud-Negligence.-Where one party to exchange relied entirely on the other's representations, and was defrauded, he was under no legal obligation to investigate, and the other could not defeat recovery on ground of negligence. Laird v. Keithley, Mo., 201 S. W. 1138.

41. Frauds, Statute of-Debt of Another.Verbal promise of defendant stockholders that they would be responsible for rent on premises leased by corporation until another tenant was procured was collateral, and plaintiff lessor, who did not release corporation or waive any of her rights, could not recover on such promise, in view of Code, § 2840, as to promises to answer for debt of another.-Friedlin v. Crocklin, Va., 95 S. E. 432.

42. Fraudulent Conveyance-Consideration.Where deed recited consideration of love and affection and for better support and maintenance, as well as $1 and other valuable considerations, and plaintiff made no attempt to controvert recital, it cannot be held that transfer was without valuable consideration, in view of Civ. Code, § 1615.-Franck v. Moran, Cal., 171 Pac. 841.

43. Mortgage.-To prevent a transaction, on its face a mortgage, being declared void as a preferential assignment, it is immaterial that the conveyance was made immediately to the trustees instead of directly to beneficiary, since the statute does not prescribe the form of a mortgage.-Mills v. Sumter Lumber Co., S. C., 95 S. E. 355.

able means indisputable, and amounts to a guaranty that no objection shall be taken to defeat the policy on the death of the insured.-Stean v. Occidental Life Ins. Co., N. M., 171 Pac. 786,

46. Extension.-Where, in consideration of written guaranty of note of guarantors' deceased brother, noteholder extended note and waived lien on horses under mortgage securing note, which horses guarantor's son was to use in hauling to secure funds to pay note, consideration for guaranty did not fail because deceased brother's administrator took possession of horses.-McDaniel v. Cage & Crow, Tex., 201 S. W. 1078.

47.

Homestead - Abandonment. Abandoned wife, without minor children or single daughters living with her, or other constituent members of family, may mortgage her homestead.Williams v. Farmers' Nat. Bank of Stephenville, Tex., 201 S. W. 1083.

48. Mutual Wills.-Where husband and wife mutually willed homestead to survivor for life, with remainder to their children, and after death of surviving wife, it was not occupied by children, they took free from homestead character, and it might be subject to former judgment against husband revived against his administratrix.-Postlethwaite v. Edson, Kan., 171 Pac. 769.

49. Insane Persons-Notice. Where one was arrested on charge of insanity by order of a probate court, and brought before the court. tried, and found insane, such arrest and bringing before the court was the equivalent of the notice required by Rev. St. 1909, § 476.-State ex rel. Pollard v. Brasher, Mo., 201 S. W. 1150.

50. Insurance-Accident. In action on accident policy defended on ground of suicide, evidence that pistol which inflicted fatal wound could be discharged by a fall was admissible; discharge being admitted.-Reynolds v. Maryland Casualty Co., Mo., 201 S. W. 1128.

51. Burglary.-Damage to garments by moths after being taken from their packages by persons who broke and entered was only consequentially due to the burglary, so that owner could not recover under a policy insuring against "direct" loss by burglary, theft, or larceny.-Downs v. New Jersey Fidelity & Plate Glass Ins. Co. of Newark, N. J., 103 Atl. 205.

52. Collateral Security.—Where seller of property effects insurance under contract, such is collateral security for debt, and seller must give credit to buyer for any amount collected theron, and when exceeding debt pay residue to buyer whether the insurance be of property or only seller's insurable interest.-Camp & Meehl v. Christo Mfg. Co., Va., 95 S. E. 424.

53.- -Executory Contract.-Purchaser occupying land under executory contract, though purchase price is not fully paid, is the unconditional and sole owner of fee-simple title thereto within fire insurance policy by its terms void, unless insured has unconditional and sole ownership.Globe & Rutgers Fire Ins. Co. v. Creekmore, Okla., 171 Pac. 874.

54. Iron-Safe Clause.-Under iron-safe clause requiring insured to take inventory within 30 days and to keep set of books showing the stock on hand and avoiding policy if he did not do so, where fire occurred less than 30 days after issuance of the policy, the insured could recover regardless of books or inventory.— Springfield Fire & Marine Ins. Co. of Springfield, Mass. v. Shapoff, Ky., 201 S. W. 1116.

55. Suicide.-An incontestable clause in a policy of insurance does not preclude the defense of suicide, where the suicide clause is a part of the contract to pay, providing how much shall be due and payable in the event of suicide. -Stean v. Occidental Life Ins. Co., N. M., 171 Pac. 786.

56. Intoxicating Liquors-Taxation.-Under Laws 1917, c. 623, providing for reduction of liquor tax certificates according to population, where entire town should have been allowed 126 certificates instead of 125, excise commissioner had authority to designate additional place, but no authority to nullify designation already made. -In re Gaignat, N. Y., 119 N. E. 236.

57. Joint Adventures-Termination -Where a continuing contract to jointly acquire land

existed, and several attempts to acquire the land had failed, failure of one to perform by paying his share of money under a contract with the owners did not terminate the joint adventure, in the absence of a prior agreement to such effect. McDonough v. Saunders, Ala., 78 So. 160. 58. Matter avail

Judgment-Counterclaim.

able as a complete defense to an action at law for damages for breach of written agreement for exchange of property was not such counterclaim as might be reserved for future suit in equity to cancel agreement.-Rothman v. Engel, Ohio, 119 N. E. 250.

59. Landlord and Tenant-Negligence.-Although lessee, who had leased three rooms on second floor, and his family, including plaintiff, a child six years old, were entitled, in common with other tenants, to use of room in which was skylight, guarded by railing about 32 inches high, plaintiff could not recover because while at play in said room he climbed or fell through opening between planks of railing or from top thereof through skylight__to floor beneath. Berlin v. Wall, Va., 95 S. E. 394.

60. Terms of Years.-Where defendant went into possession of premises under plaintiff, who had lease, and meantime plaintiff obtained from his lessor, who had estate for years, second lease, to begin at expiration of old one, defendant cannot, in summary proceedings justify his retention of premises under assignment executed by one to whom plaintiff's lessor had assigned personal property on premises; it not appearing that such person had obtained title to term of years. Sayles v. Murphy, Mich., 166 N. W. 989.

61. Libel and Slander-Libel Per Se.-The words "debasing act," as used in Civil Code 1910, 4433, making it slander to charge another with having some contagious disorder, or of being guilty of some "debasing act which may exclude him from society," have reference to those repulsive acts which would cause him to be shunned or avoided, in the same way as would a contagious disease.-Morris v. Evans, Ga., 95 S. E. 385.

62.- -Special Damage.-The false statement by defendant that plaintiff was a negro is actionable per se under the statute, and no averment or proof of special damage. is necessary, and plaintiff may recover upon proof of general loss of business.-Mopsikov v. Cook, Va., 95 S. E. 426.

63. Licenses-Taxation.-Legislature has power to impose license tax on practice of his profession by civil engineer, upon his acting as civil engineer, in the business of another as well as in his own business.-Derrick v. Commonwealth, Va., 95 S. E. 392.

64. Liens-Priority.-Where contract by which a sawmill company sold lumber to defendant and received advancements of money did not provide for a lien in favor of defendant, defendant had no lien by operation of law superior to liens of labor claimants.-Tallahatchie Lumber Co. v. Thatch, Miss., 78 So. 154.

65. Master and Servant-Casual Employe.— One who kept machinery and boats in order in an amusement park whenever called upon, and had no other occupation, was not a "casual employe," so as to be excluded in determining the number of employes necessary to bring employer within Workmen's Compensation Act.-Boyle v. Mahoney & Tirny, Conn., 103 Atl. 127.

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66. Contributory Negligence.-Where mining company was trying to relieve an old passageway, which had been flooded with but which was not imminently dangerous so as to require the closing down of the mine, a miner's use of the new passage would not be contributory negligence.-Cossette v. Paulton Coal Mining Co., Pa., 103 Atl. 346.

67. Course of Employment.-Where a woman employed as chambermaid in rooming hotel, when the janitor was sick, and without her employer's knowledge, went into a light well to clean it, fell, and was killed, her kin were entitled to no compensation, since she acted beyond the scope of her employment.-Williamson v. Industrial Accident Commission, Cal., 171 Pac. 797.

68. Independent Contractor.-Musicians, although furnished by the leader twice each week to play in an amusement park, who stipulated the amount of compensation they were to receive, were not employes of an independent contractor, within Workmen's Compensation Act.-Boyle v. Mahoney & Tierney, Conn., 103 Atl. 127.

69. Respondeat Superior.-Where one employed to follow master's trucks and oversee receipt and delivery of goods, permitted to select means of travel, but not a licensed chauffeur and not authorized to drive a car, took one from another servant and drove it, injuring a third person, the master is not liable.-O'Laughlin v. Mackey, N. Y., 169 N. Y. S. 835.

70.- -Workmen's Compensation Act.-Where a paper mill was a going concern, and installation therein of new engine was necessary to run it at its full capacity, an employe engaged in installing engine was furthering business of mill within Workmen's Compensation Law, § 2, group 15, making manufacturing of paper a hazardous employment.-McNally v. Diamond Mills Paper Co., N. Y. 119 N. E. 242.

71.-Workmen's Compensation Act.-Where skylarking of boy employes came under observation of employer's president and superintendent, they were thereby charged with contemplating no more than a recurrence, and not that one boy might commit an atrocious assault on the other.-Mountain Ice Co. v. McNeil, N. J., 103 Atl. 184.

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72. Workmen's Compensation Act.-Servant, working in room where there was movable elevator operated by hand, and adjacent stamping room containing power-driven press, elevators, and stamping machine, was employed in proximity of hoisting apparatus and power driven machinery under Workmen's Compensa tion Law (Laws 1911, c. 163) § 1.-Morin "v. Nashua Mfg. Co., N. H., 103 Atl. 312.

73. Mines and Minerals-Cancellation.-Under Rev. St. §§ 2347-2351 (Comp. St. 1916, §§ 46594 4663), entries cannot lawfully be made in interest of persons or associations who have exer cised their own right of entry, and patents based on entries by persons who had not exer cised their pre-emption rights pursuant to scheme to enable person or association to obtain lands in excess of amount allowed are fraudulent and subject to cancellation.-United States v. Kirk, U. S. C. C. A., 248 Fed. 30.

74. Mortgages-Cutting Timber.-Where first mortgage on timber lands and other property of a lumber company authorized the cutting and removal of timber on payment to the trustee of affixed sum per thousand feet, those accepting a third mortgage subject to the conditions of the first cannot complain of cutting and removal of timber pursuant to that provision. First Nat. Bank of San Francisco v. Detroit Trust Co., U. S. C. C. A., 248 Fed. 16.

75.- -Recitals.-Where owners of land mortgaged it, and it was subsequently partitioned among them, and through various deeds various purchasers assumed mortgages, a subsequent mortgagee of one of the purchasers was not an innocent purchaser, since he was bound by the recitals of his title deeds which had been made prior to the time of the mortgage.-Fry v. White, Ark., 201 S. W. 1105.

76. Municipal Corporations-Contributory Negligence. That wagon was driven at night without a lamp in violation of 4 Comp. St. 1910, p. 4470, 92a, is only a circumstance to be considered on the question of contributory negligence, and does not prevent recovery, where the wagon was run down.-Kopper v. Bernhardt, N. J., 103 Atl. 186.

77. Negligence-Attractive Lures.-Where child was injured playing on turntable, action of towerman, near by, in speaking generally to the children on turntable, telling them they might get hurt, did not relieve railroad company from liability. Gulf, C. & S. F. Ry. Co. v. Chappel, Tex., 201 S. W. 1037.

78. Parent and Child-Stepdaughter.-As respects stepdaughter's right to money given or paid her by her stepfather for services rendered, and by her loaned to him, it is immaterial whether she had been emancipated by him, or whether, under circumstances, he was in loco

parentis to her and entitled to her services.Youngblood v. Hoeffle, Mo., 201 S. W. 1057.

79. Principal and Agent-Evidence.-Agency may be inferred from the fact that circulars and letterheads of a party described a certain person as its agent.-Theisen V. Detroit Taxicab Transfer Co., Mich., 166 N. W. 901.

&

80. Evidence.-Where defendant authorized plaintiffs for commission to rent and care for property, without time limit, and plaintiffs knew that the property would be sold, and did not object to giving option thereon, and defendant sold the property, plaintiffs could not recover commissions on rents not yet collected, nor damages for the breach.-Casey v. Walker & Mosby, Va., 95 S. E. 434.

81. Principal and Surety-Bond on Condition. -Where bond conditioned to pay for each lot of live stock within 48 hours after delivery was by agreement changed to provide for payment within two weeks after delivery, the change was not retroactive, and bonds did not secure money due from sales made during two weeks prior to the change.-Hughes v. Globe Indemnity Co., Minn., 166 N. W. 1075.

82. Railroads-Interstate Train.-Fact, standing alone, that interstate mail train did not stop at county seat but stopped at smaller places on flag, is of slight weight in determining county seat's claim of discrimination in train service.State ex rel. Missouri Pac. Ry. Co. v. Public Service Commission of Missouri, Mo., 201 S. W. 1143.

83. Setting Out Fire. In action for firing plaintiff's barns, testimony that witnesses building new barns at greater distance from railroad saw that live sparks were carried to new site is admissible to show that it was physically possible for sparks from engine to have caused fire. Budd v. Ann Arbor R. Co., Mich., 166 N. W. 927.

84. Receivers Landlord and Tenant.-Where landlord, whose premises had been occupied while receivers of corporation continued business, asserted claim for damages, but there was no evidence as to what damage had occurred during receivership and what occurred while premises were in possession of corporation prior thereto, whole item must, as against receivers, be disallowed.-Atkinson & Co. v. Aldrich-Clisbee Co., U. S. D. C., 248 Fed. 134.

85. Sales-Contract.-Where plaintiff stopped delivery, before termination of contract to deliver a certain amount of milk daily from a certain number of cows, because of sale of his cows, he could not recover in an action on contract for milk delivered.-Karales v. Los Angeles Creamery Co., Cal., 171 Pac. 821.

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86. Damages. In action for failure to deliver store fixtures for a business just mencing, it was error to allow damages for profits measured by profits made during corresponding period of ensuing year.-Cramer v. Grand Rapids Show Case Co., N. Y., 119 N. E. 227, 223 N. Y. 63.

87. Implied Warranty.-Where party buys eggs under contract that he must inspect eggs when put in storage and must stand any depreciation thereafter, and pay for them as he gets them, there is no implied warranty that eggs will be merchantable when delivered.-E. P. Stacy & Sons v. Moher, Mich., 166 N. W. 849.

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88. Tender.-Where defendant sold garage and agreed to assign lease to plaintiff and the landlord refused to permit the assignment, defendant's tender of the price back, with statement that he could not assign the lease, was not a rescission, since the vendor may not rescind for his own default.-Ward v. Carey, Mich., 166 N. W. 952.

89.- -Trasfer of Title.-Contract by which a sawmill company agreed to manufacture lumber according to specifications, to be stacked in its yards and loaded on cars under inspection of buyer, which had made advancements and agreed to pay the balance due when lumber was loaded, did not of itself convey either title or possession of the lumber.-Tallahatchie Lumber Co. V. Thatch, Miss., 78 So. 154.

90. Warranty.-If there was failure of warranty of seller of endless power belt in respect to length of service, fitness, and merchantable

quality, buyer should have rejected and offered to return belt within reasonable time, otherwise implied warranty was terminated by acceptance. -Lumbermen's Supply Co. v. Poplarville Sawmill Co., Miss., 78 So. 157.

91. Sheriff's and Constables-Personal Liability. Sheriff is not liable for damages for personal injury to a citizen inflicted recklessly by a deputy sheriff, unless it was done in violation of an official duty or in an unfaithful and improper performance of an official act.-Sanders v. Humphries, La., 78 So. 168.

92.

Specific Performance-Sale.-Where contract for sale of ores by mining company and their purchase by smelting company provided for assignment, assignment of contract did not relieve assignor of liability so as to prevent specific performance.-American Smelting & Refining Co. v. Bunker Hill & Sullivan Mining & Concentrating Co., U. S. D. C., 248 Fed. 172. 93. Street Railroads Contributory Neglidriver gence. Where' of electric automobile, which could have been stopped in from six to ten feet went forward, though he saw approaching street car was near, he was guilty of contributory negligenec.-Miller v. Detroit United Ry., Mich., 166 N. W. 870.

95.

V.

Telegraphs and Telephones-Contracts.An exclusive contract between a local and long distance telephone company, which can be terminated on 30 days' notice by either party, is not good ground for a permanent injunction against enforcement of an order of the Public Service Commission that another local competing company, with 1,500 subscribers, be allowed to connect with the long distance company.-Northern Indiana & Southern Michigan Telephone, Telegraph & Cable Co. v. People's Mut. Telephone Co. of La Grange, Ind., 119 N. E 212.

96. Evidence.-That proprietor of telephone exchange directed defendant, one of his patrons, to go to bank and get rebate on account of service complained of, etc., does not show, defendant not having received such rebate, that there was an extension of period of service without further payment, entitling defendant during such period to retain possession of telephone instrument.-Moore v. Harneck, Mich., 166 N. W. 987.

97. Time-Sunday.-Under a bond conditioned that buyer should pay for live stock within 48 hours after delivery with a provision for nonliability in case of previous sales not paid for within 48 hours, if such period ended on Sunday, that day was not to be counted under Gen. St. 1913, §§ 6010, 9412, subd. 21.-Hughes v. Globe Indemnity Co., Minn., 166 N. W. 1075.

98.

War-Espionage Act.-Under Espionage Act June 15. 1917, §3, denouncing willfully making or conveying of false reports or false statements with intent to interfere with the operation or success of the military or naval forces of the United States, false reports and false statements import reports and statements of facts, and not accused's beliefs, intentions, and arguments; but slanders of the President and of the nation are false reports and statements within the act.-United States v. Hall, U. S. D. C., 248 Fed. 150.

99. -Description of Property. The description of land in a will as "forty acres of land to include the dwelling house and the old field *** of the premises on which I now live" is sufficient to pass the title to the land covered by the dwelling house and the old field.-Blanton v. Boney, N. C., 95 S. E. 361.

100.- -Legatees.-A will giving a legacy "for each grandchild I may leave surviving me, whether now or thereafter born," contemplates every grandchild whose identity may be established at the time of testator's death, and includes grandchildren en ventre at that time.Fuller v. Gale, N. H., 103 Atl. 308.

Central Law Journal.

ST. LOUIS, MO., JUNE 21, 1918

UNCONSTITUTIONALITY OF THE CHILD LABOR ACT.

By a majority of five to four, U. S. Supreme Court has declared unconstitutional the Child Labor Act of Congress, denying admission to interstate transportation of goods manufactured in a factory wherein, within thirty days prior to their shipment, children under the age of fourteen years have been employed or permitted to work at all, or children between the ages of fourteen and sixteen years have been employed or permitted to work more than eight hours in any day or more than six days in any week, or after the hour of 7 o'clock, p. m., or before the hour of 6 o'clock a. m. Hammer v. Dagenhart, not yet reported.

The form of this act easily discloses that it is not for any inherent quality in goods, in the manufacture of which child labor participates, that attempt is made to deny to them facilities in interstate com

merce.

Any of such goods, which might be manufactured through child labor within thirty days of their removal from a factory, could not be deemed different in essential quality from those removed after such period had elapsed, unless one may conceive that there is, so to speak, an odor that may remain for thirty days unlike that spoken of by the poet :

"You may break, you may shatter, the vase if you will,

"But the scent of the roses will hang round it still."

The act, then, places an embargo on such goods for a limited time after manufacture not for any quality in the goods themselves, but to repress methods in their manufacture: in other words, the control of transportation creates a classification for ulterior reasons having no relation to commerce as commerce or to the

protection of articles therein, with which such goods may become commingled.

In this way the goods are not in a class like Lottery Tickets, which as a means of gambling are inherently bad, as held in Champion v. Ames, 188 U. S. 321; nor can they be regarded as bad eggs within principle under the Pure Food and Drug Act, as held in Hipolite Egg Co. v. United States, 220 U. S. 45; nor as a tainted individual under the "White Slave Traffic Act" as decided in Hoke v. United States, 227 U. S. 308; Caminetti v. United States, 242 U. S. 470; nor morally objectionable like intoxicating liquors as decided in Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311.

In the last cited case the prohibition was grounded on the fact that "the exceptional nature of the subject here regulated is the basis upon which the exceptional power exerted must rest and affords no ground for any fear that such power may be constitutionally extended to things which it may not, consistently with the guarantees of the Constitution, embrace."

Here is an intimation that to sustain a law forbidding shipment in interstate commerce there ought to be something of an "exceptional nature" in the subject forbidden to be so shipped, and that the commerce clause does not vest an arbitrary discretion in Congress as to articles offered for such shipment. Its discretion may be broad, but it is not unlimited.

Referring to the cases above cited, Justice Day, speaking for the majority says: "In each of these instances the use of interstate transportation was necessary to the accomplishment of harmful results. In other words, although the power over interstate transportation was to regulate. that could only be accomplished by prohibiting the use of the facilities of interstate commerce to effect the result intended."

It is easy to see that the purpose of shipment of a lottery ticket, or of decayed

food, or of a woman for purposes of prostitution, or of intoxicating liquor is but a step in the prosecution of an illegal, unsanitary, immoral or other purpose contrary to public policy. It is hard to see how the shipment of goods manufactured in a way not violative of local law and not forbidden to be sold in any state to which they are destined, could be supposed to have any ultimate evil effect, even were local law either at the place of manufacture or the place of destination to attempt regulation. This regulation might, at least in the latter place, run counter to lawful rights of shippers under the commerce. clause. It would be deemed a direct burden on interstate commerce.

Justice Holmes, speaking for himself, and Justices McKenna, Brandeis and Clarke, dissenting, argues that: "Regulation means the prohibition of something and when interstate commerce is the matter to be regulated, I cannot doubt that the regulation may prohibit any part of such commerce that Congress sees fit to forbid." He then cites the Lottery case, but that as we see is distinguished by Justice Day as presenting the accomplishment of an ultimate evil, and so we think may be distinguished generally the other cases which Justice Holmes cites.

The manner in which he concludes his dissenting opinion deserves to be reproduced:

"The public policy of the United States is shaped with a view to the benefit of the nation as a whole. If, as has been the case within the memory of men still living, a state should take a different view of the propriety of sustaining a lottery from that which generally prevails, I cannot believe that the fact would require a different decision from that reached in Champion v. Ames. Yet in that case it could be said with quite as much force as in this that Congress was attempting to intermeddle with the state's domestic affairs. The national welfare as understood by Congress may require a different attitude.

within its sphere from that of some selfseeking state."

He thought also that, if interstate transportation of liquor is forbidden it ought also to be admissible to prevent shipment of something that is the "product of ruined lives."

But lottery tickets and intoxicating liquors are denied shipment as part of interstate commerce, only because they serve an ulterior purpose opposed to public policy. This is not so as to goods, the product of child labor. There is nothing intrinsically objectionable in such goods as there is in lottery tickets and in intoxicating liquors.

NOTES OF IMPORTANT DECISIONS.

FEDERAL EMPLOYERS' LIABILITY ACT— AFFIRMANCE OF JUDGMENT CONTINGENT ON REDUCTION OF AMOUNT.-May a judgment awarding excessive damages, in opinion of a reviewing court, be reduced as condition of affirmance in a suit under Federal Employes' Liability Act? Second Appellate Division of New York Supreme Court, answers this query in the affirmative. Field v. New York, N. H. & H. R. R., 170 N. Y. Supp.

-.

It has been held by U. S. Supreme Court that: "In a case in which damages for a tort have been assessed by a jury at an entire sum, no court of law, upon a motion for a new trial of excessive damages * * * is authorized, according to its own estimate of the amount of damages, which the plaintiff ought to have recovered, to enter an absolute judgment for any other sum than that assessed by the jury." Kennon v. Germer, 131 U. S. 22, 29.

Also the federal act provides for estimation of damages being made by the jury "in proportion to the amount of negligence attributable to such employe," and last "all questions of negligence and contributory negligence shall be for the jury."

It seems well settled that in actions in state courts under this federal statute state law is to be followed in all matters of practice and procedure, and all questions of substantive law are governed by the federal court. Does the query above concern a substantive right, or does it come under a state rule of practice and procedure? It seems to us that the federal