following State v. Allen, and Phelps v. Piper, supra. This rule has also been adopted by the Supreme Court of Kansas. Sims v. Daniels, 46 Pac. Rep. 952, which further holds, that the officers appointed to consider objections to nominations have no power to consider and enforce a written agreement made by the candidates and committees of opposing factions of a political party, providing for the settlement of their differences, and for a determination of the question as to which set of candidates is entitled to be placed on the official ballot, and to use the party name. Such a special tribunal cannot consider or enforce an agreement of candidates to withdraw on the happening of a certain event or contingency, even though such agreement is in writing. The Supreme Court of California, however, in opposition to the previous consensus of authority, holds that when certificates of nomination are presented to the registering officer by each of two conventions claiming to represent the same political party, it is for him to determine which represents the party, at least in the first instance. McDonald v. Hinton, 46 Pac. Rep. 870.

When a person appointed by the county committee of a party to open and preside over a convention until the election of a temporary chairman refuses to recognize the authoritative character of the roll of delegates, but takes a viva voce vote on the question of the election of such chairman, and the majority of the delegates refuse to accept the chairman so elected, retire to another part of the house in which the convention is held, elect another chairman, and proceed to nominate candidates, the nominations so made are the regular nominees of the party, and their names are entitled to be placed on the official ballot, rather than those nominated by the delegates who remain under the first chairman. French v. Roosevelt (Supreme Court, Special Term, New York County), 41 N. Y. Suppl. 1080. The Supreme Court of Ohio has recently decided that the act of that State of April 17, 1896 (Laws, p. 185), prohibiting the printing of the name of any candidate more than once on the official ballot, is constitutional. State v. Bode, 45 N. E. Rep. 195.

In Cook v. Fisher (Supreme Court of Iowa), 69 N. W. Rep. 264, the initial of a

candidate was printed as "R," on the official ballots, instead of "A," his correct initial. At the election, some of the ballots cast were corrected by the judges of election by writing "A" before the "R" with pencil, others by writing "A" over the "R" in pencil, and the rest by stamping an "A" over the "R" with a rubber stamp. It was decided that, though the change thus created by the different method of correction was distinguishable, yet, as no ballot in any one of the classes bore any marks which would distinguish it from other ballots of the same class, the ballots were not illegal on the ground that they bore identifying marks. It was also decided that though the ballot law of Iowa, which prescribes particularly the manner in which the official ballots shall be prepared, corrected, furnished and used, and provided that no other ballots shall be used or counted is mandatory in so far as it requires certain officers to prepare and issue them in the prescribed manner, it cannot be construed as mandatory on voters in so far as it provides that no other ballots shall be used or counted, so as to deprive them of their right to vote because the officers who print the ballots have made a technical mistake in printing the name of a candidate on the ballot; and that accordingly the changes made by the judges did not necessitate the rejection of the entire vote of the township, on the ground that those changes prevented the ballots from being "official" ballots, and consequently rendered them illegal.

DIVORCE-ALIMONY-PREVENTING ENFORCEMENT OF DECREE.-The Supreme Court of New York decides, in Hoefler v. Hoefler, 42 N. Y. Supp. 1035, that an action will lie by a wife in whose favor alimony has been decreed pending divorce proceedings against one who has induced and aided the husband to leave the State in order to avoid the payment of alimony, as to which he was then in default. The following is from the opinion of the court:

In Plaster v. Seabury, 43 Hun, 611, it appears that the plaintiff in the action had brought a prior action against the same defendants to establish a trade-mark in which it was successful, and had obtained a permanent injunction enjoining the defendant from violating the trade-mark. The action in the case cited was brought, among other things, against the defendants to recover damages for a violation of this injunction which had accrued since the judgment in the first action. It was insisted there, as it is here, that the proper

remedy of the aggrieved party was to institute proceedings to punish the defendant for a contempt where the damages sustained could have been included in a fine; but Judge Van Brunt, in a clear opinion, representing the General Term of the First Department, held that, notwithstanding the violation of the injunction order subjected the defendants to contempt proceedings, and they might be proceeded against and fined, and the damages collected in that way, there was nothing in the Code which restricts the plaintiff to this form of procedure, but it had a right of action for the damages.

In King v. Barnes, 113 N. Y. 476, 21 N. E. Rep. 182, where a final judgment required the president and directors of a corporation to transfer its stock upon the books of a corporation, one Barnes was a defendant in the action, though not called upon personally to perform the act required, who advised and aided the defendants whose duty it was to transfer the stock to disobey the judgment, and it appeared that Barnes "supported them out of the jurisdiction when the fire of the courts became too hot for their safety, or their orders could be thwarted by that means," and Barnes was fined and imprisoned for contempt. Judge Finch (at page 479, 113 N. Y. and page 183, 21 N. E. Rep. ), in referring to section 14 of the Code of Civil Procedure and the last clause of subdivision 4, says: "The subdivision specifies certain acts of interference with the due and orderly progress of an action or proceeding to its final and ultimate close, and then adds, generally, a provision which covers any other interference with it. So that any person who interferes with the process or control or action of the court in a pending litigation, unlawfully and without authority, is guilty of a civil contempt, if his act defeats, impairs, impedes or prejudices the right or remedy of a party to such action or proceeding."

Here is a clear intimation that damages may arise from such an interference which the injured party is entitled to recover in contempt proceedings, and the case in Hun, cited, holds, as we have seen, that such damages may be recovered by action. The act of the defendant complained of certainly tended to defeat, impede or prejudice the right or remedy of the plaintiff in the action for a separation,

The defendant finally claims that no precedent can be found for this action. This action would, under the old system, when actions had names, have been an action upon the case, which is said to be a remedy adapted to every special invasion of one's rights. Millar v. Taylor, 4 Burrows, 2345. And in all cases where a man has a temporal loss or damage by the wrong of another, he may have an action on the case, to be repaid in damages. Com. Dig. "Action on Case;" Commissioners v. Duckett, 20 Md. 468. To maintain an action on the case it is not necessary that it should be supported by instance or precedent. It is sufficient if the case in question is covered by principle. McFarlane v. Moore, 1 Overt. 174. In Hurwitz v. Hurwitz, 30 N. Y. Supp. 208, the General Term of the New York City Court held that a judgment creditor might maintain an action at law against the judgment debtor, and another to recover damages for conspiring to prevent the collection of the judgment by removing and disposing of such debtor's property and placing it beyond the reach of execution. In Michalson v. All, 21 S. E. Rep. 323, it was held that where a person, with the connivance of the owner, converts to his own use farm products, subject to an agricultural lien, and places them beyond the reach of the lienee under the statutory proceedings, the lat

ter may, in an action similar to case at common law, recover his damages. We need not multiply cases to sustain the principle here contended for.

CONSTITUTIONAL LAW SALE OF ADULTERATED FOOD.-The Supreme Court of Appeals of West Virginia holds, in State v. Myers, that a statute of 1891 providing that from and after its passage it shall be unlawful for any manufacturer or vendor of oleomargarine, artificial or adulterated butter, to manufacture or offer for sale within the limits of this State, any oleomargarine, artificial or adul terated butter, whether the same be man. ufactured within or without this State, unless the same shall be colored pink, and prescribing a penalty for violation of the same, is constitutional. Upon the law involved in the case the court says:

Now, the evident intention of this statute is to protect the citizens of the State and the public generally from imposition and fraud in the manufacture and sale of an article of everyday use and consumption. We have on our statute books provisions for the prevention of fraud in the sale of fertilizers to the farmer, requiring that its chemical qualities shall be tested before it is thrown upon the market; also as to the quality of petroleum, which is required to be inspected, graded, and measured before the same is transported, with a view of ascertaining its quantity and grade or gravity before it is allowed to go into the markets, with a view of preventing injury from its ignition or explosion; and, indeed, it is difficult to conceive of any higher object or more imperative duty which devolves upon the legislature than to guard the citizens of the State from impositions occasioned by the adulteration of articles of food or other articles of everyday use. Tiedeman, in his valuable work on Limitations of Police Power, on page 207, section 89, under the caption "Regulation of Sale of Certain Articles of Merchandise," says: "The regulations which would fall under this heading are very nu merous, and most of them are free from all doubt in respect to their validity under our constitutional lim itations. They are instituted either for the purpose of preventing injury to the public, or thwarting all attempts of the vendor to defraud the vendee. A regulation, whatever may be its character which is instituted for the purpose of preventing injury to the public, and which does tend to furnish the desired protection, is clearly constitutional." The object of the manufacturer of oleomargarine is to produce an article as near as possible in appearance like genuine butter of good quality, with a view of disposing of the same in the market for the same price as butter man ufactured from milk; and the object of the legislature in requiring it to be colored pink, instead of yellow, is to prevent this imposition. Cooley, Const. Lim. (3d Ed.) p. 180, speaking of inquiry into legislative motives, says: "From what examination has been given to this subject, it appears that whether a stat ute is constitutional or not is always a question of power; that is, whether the legislature in the par ticular case, in respect to the subject-matter of the act, the manner in which its object is to be accom plished, and the mode of enacting it, has kept within the constitutional limits, and observed the constitu

tional conditions. In any case in which this question is answered in the affirmative, the courts are not at liberty to inquire into the proper exercise of the power. They must assume that the legislative discretion has been properly exercised. If evidence was required, it must be supposed that it was before the legislature when the act was passed; and, if any special finding was required to warrant the passage of the particular act, it would seem that the passage of the act itself might be held equivalent to such find. ing." The question presented by this record was before the Supreme Court of New Hampshire in the case of State v. Marshall, 64 N. H. 549, 15 Atl. Rep. 210, in which it was held that "a statute prohibiting the sale of imitation butter unless colored pink has for its object the prevention of fraud on the public in the sale of provisions, and is, therefore, within the purview of the police power of the State." This question was also before the United States Supreme Court in the case of Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. Rep. 992, 1257, in which it was held that "the fourteenth amendment to the constitution was not designed to interfere with the exercise of the police power by the State for the protection of health, the prevention of fraud, and the preservation of the public morals," and that "the prohibition of the manufacture' out of oleaginous substances, or out of any compound thereof other than that produced from unadulterated milk or cream from unadulterated milk, of an article designed to take the place of butter or cheese produced from pure unadulterated milk or cream, or cream from unadulterated milk or the prohibition upon the manufacture of any imitation or adulterated butter or cheese, or upon the selling or offering for sale or having in possession with intent to sell the same as an article of food, is a law. ful exercise by the State of the power to protect by police regulations the public health." The question was also before the Court of Appeals of New York, in the case of People v. Arensburg, 105 N. Y. 123, 11 N. E. Rep. 277, and it was there held that: "The producers of butter from animal fat or oils, although the product may be wholesome, nutritious, and suitable for food, and so the manufacture and sale thereof may not be prohibited, have no constitutional right to resort to devices for the purpose of making their prodact resemble dairy butter, and the legislature has power to enact such laws as it may deem necessary to prevent the simulated article being put upon the market in such form or manner as to be calculated to deceive." In the case of Butler v. Chambers in the Supreme Court of Minnesota, 36 Minn. 69, 30 N. W. Rep. 308, the court, in its opinion, on pages 70 and 71, 36 Minn., and pages 308, 309, 30 N. W. Rep., says upon this question: "In 1881 the legislature passed an act entitled 'An act to regulate the traffic in oleomargarine.' Laws 1881, ch. 133. This act provides that any person who shall knowingly sell, or offer for sale, any article or substance in semblance of butter, not the legitimate product of the dairy, made exclusively of milk and cream, but into the composition of which the oil or fat of animals, or melted butter, or any oil thereof, enters as a substitute for cream, in tubs, arking, or other original packages, not distinctly, legibly, and durably branded, shall be guilty

of a misdemeanor, etc. It cannot be doubted that the act of 1881 was a legitimate exercise of police power. The public may be protected by appropriate legisla tion against imposition in the purchase of articles of consumption; and if, as we may assume, the preva lent compounds resembling butter in appearance and flavor, and put on the market as a substitute for it,

and generally known as 'oleomargarine,' 'butterine,' etc., are liable to deceive and mislead purchasers and consumers as to the real nature of the product, and especially if such preparations are made of unwholesome ingredients, then we think there may be suffi cient reasons why the legislature may, in its discretion, meet the evil sought to be remedied by provis ions for the suppression of the manufacture and sale of such artificial compounds altogether." So in the case of People v. McGann, 34 Hun, 358, it was held that the legislature bad power, by virtue of the police power vested in it, to pass an act prohibiting absolutely the manufacture and sale as an article of food any articles designed to take the place of butter or cheese produced from pure, unadulterated milk or cream of the same, and that such act was constitutional and valid. If, then, the legislature has the power, under the police power vested in it, to prohibit the manufacture and sale of oleomargarine entirely, we can but conclude that under the same power it may place (as it has done in this State), some distinguishing mark upon it, to prevent deception and imposition in the sale of the same, even though it should have the effect of injuring the sale of the same in the markets; and we cannot regard the act in question in this State as inhibited by any clause of the constitution. The judgment complained of must be affirmed, with costs.

case.

The plaintiff in error, in his brief filed upon the rehearing of this case, seeks to show that the part of the act of our legislature which has reference to and af fects importers into the State as to unbroken bulks or "original packages" is clearly unconstitutional, and, if unconstitutional as to these, it is unconstitutional as to all the parties to whom it applies; in other words, that the sections of the act are not severable; if a part is unconstitutional, the whole is unconstitutional, for the reason that no one could know that the legislature would have given their sanction to the part of the act that affects the citizens of the State without the clause or part of the act that denounces the penalty against importers of "original packages;" and seeks to show that the case of Plumley v. Massachusetts, 155 U. S. 461, 15 Sup. Ct. Rep. 154, does not affect the In that case, however, this question is exhaustively considered by Justice Harlan, and the authorities fully collated. The first section of the syllabus in that case reads as follows: "The act of August 2, 1886, ch. 840, 24 Stat. 209, does not give authority to those who pay the taxes prescribed by it to engage in the manufacture or sale of oleomargarine in any State which lawfully forbids such manufacture or sale, or to disregard any regulations which a State may lawfully prescribe in reference to that article; and that act was not intended to be, and is not, a regulation of commerce among the States;" and that the statute of Massachusetts of March 10, 1891 (chapter 58), "to prevent deception in the manufacture and sale of imitation butter," in its application to the sales of oleomargarine artificially colored so as to cause it to look like yellow butter, and brought into Massachusetts, is not in conflict with the clause of the constitution of the United States investing congress with power to regulate commerce among the several States; also restraining the case of Leisy v. Hardin, 135 U. S. 100, 124, 10 Sup. Ct. Rep. 681, in its application to the case there actually presented for determination, and held not to justify the broad contention that a State is powerless to prevent the sale of articles of food manufactured in or brought from another State, and subjects of traffic or commerce, if their sale may cheat the people into purchasing something they do not intend to buy,

and which is wholly different from what its condition and appearance import. The judiciary of the United States should not strike down a legislative enactment of a State especially if it has direct connection with the social order, the health, and the morals of its people, unless such legislation plainly and palpably violates some right granted or secured by the national constitution, or encroaches upon the authority delegated to the United States for the attainment of objects of national concern. On page 474, 155 U. S., and page 159, 15 Sup. Ct. Rep., Justice Harlan, in delivering the opinion of the court, says: "The language we have quoted from Leisy v. Hardin must be restrained in its application to the case actually presented for determination, and does not justify the broad contention that a State is powerless to prevent the sale of articles manufactured in or brought from another State, and subjects of traffic and commerce, if the sale may cheat the people into purchasing something they do not intend to buy, and which is wholly different from what its condition and appearance, import." In the case of Plumley v. Massachusetts, Plumley was ar rested for selling in the original package oleomargarine manufactured in Illinois, and brought to the State of Massachusetts colored so as to resemble butter manufactured from milk,in violation of the Massachu setts statute. The attempt was made to show that this statute was unconstitutional, but the court sustained the statute, and held it to be constitutional. So, also,

in the case of Rahrer, Petitioner, 140 U. S. 545, 11 Sup. Ct. Rep. 865, it was held that the act of August 8, 1890 (26 Stat. 313, ch. 728), enacting that "all fermented, distilled or other intoxicating liquors or liquids transported into any State or territory or remaining therein for use, consumption, sale or storage therein shall, upon arrival in such State or territory, be subject to the operation and effect of the laws of such State or territory enacted in the exercise of its police powers to the same extent and in the same manner as though such liquids or liquors had been produced in such State or territory, and shall not be exempt therefrom by reason of being introduced therein in origi nal packages or otherwise," is a valid and constitutional exercise of the legislative power conferred upon congress; and, after that act took effect, such liquors or liquids introduced into a State or territory from another State, whether in original packages or otherwise, became subject to the operation of such of its then-existing laws as had been properly enacted in the exercise of its police powers. Having held in the opinion that the legislature had the right, under its police powers to require parties offering for sale oleomargarine to color the same pink in order to identify it and distinguish it from ordinary butter, and the above quoted cases holding that the fact that the same is offered for sale in original packages does does not prevent it from being subject to the effects of our statute requiring the same to be colored pink, which is a police regulation, we see no cause to change our opinion expressed in the original opinion, and must therefore hold the statute to be constitutional, and affirm the judgment, with costs.

brakeman undertakes to assist in moving the car to a point where it will be more easy of access, because the shipper's interest and his own will thus be served by expediting the loading, and while so assisting is injured by the railroad company's negligence, the company is liable, though it did not need the servant's assistance.

Defendant relies upon the cases of Mayton v. Railroad Co., 63 Tex. 77, Sherman v. Railroad Co., 4 Adol. & E. 589, and Everhart v. Railroad Co., Id. 599, as holding the general rule that one who volunteers his services, or performs them at the request of an em ployee not authorized to employ him, stands in the same relation to the company, as to liability of the company, as those with whom he associates himself. Counsel for the railroad concedes that cases may be taken out of this general rule, but insists there must appear a self-interest in the very work to be done; citing Welch v. Railroad Co. (Me.), 30 Atl. Rep. 116, also the case of Wischam v. Richards, 20 Atl. Rep. 532, 136 Pa. St. 109, as illustrating the rule and excep. tions.

The contention of plaintiffs is illustrated by the cases of Eason v. Railroad Co., 57 Am. Rep. 606. In that case the person injured was not receiving or loading freight. He was attempting to help move a car so as to place it where he could more conveniently get at it in order to load it for his employers. The opinion does not say in that case that the conductor said he was short of hands. And it does not state that it was necessary for the plaintiff to undertake the work at which he was injured. The decision of the court is based upon the broad proposition that his employers were interested in having the work done, and that, therefore, what he did was done in their interest, and not in that of the defendant; and that, therefore, he was not a mere volunteer, and was entitled to protection. Another case in point is Railway Co. v. Bolton, from the Supreme Court of Ohio, reported in 54 Am. Rep. 803. In that case a passenger on a street railway was injured. The car which he was upon had got off of the right track, and he was assisting the servants of the road in pushing it back, when he was injured by another car belonging to the same road. In this case it is not shown that he was requested to assist in what he was doing, nor is it anywhere stated that it was necessary for him thus to assist in order to get it back, or that he would save much time by assisting or that he was in any haste to pursue his journey. The court put the case upon the distinct ground that he had an interest in having the car shoved back in order to facilitate his journey, that what he was doing was reasonable nd prudent, and that it was not contrary to the wishes of the serv ant of defendant who had the car in charge. A very carefully considered case is that of Welch v. Railroad Co. (Me.), 30 Atl. Rep. 116. In that case the same arguments urged by counsel for defendant in this case were pressed on the court. It is said in the opin ion: "It is undoubtedly true that, if one who has no interest in the work to be performed-a mere bystander-voluntarily assists the servants of another, either with or without the latter's request, he must do so at his own risk; and the jury were so instructed in this case. But it is equally well settled that one who has an interest in the workto be performed, and for his own convenience, or to facilitate or expedite his own work, assists the servants of another, at their

request, or with their consent, is not thereby deprived of his right to be protected against the carelessness of the other's servants. In the former class of cases the master will not be responsible; in the latter he will be. This distinction is sustained by every text-book to which our attention has been called, and is well sustained by adjudged cases." And a little further on the law is stated thus: "The distinction running through all the cases is this: That where a mere volunteer-that is, one who has no interest in the work-undertakes to assist the servants of another, he does so at his own risk. In such a case the maxim of 'respondeat superior' does not apply. But where one bas an interest in the work, either as a consignee or the servant of a consignee, or in any other capacity, and at the request or with the consent of another's servants undertakes to assist them, he does not do so at his own risk, and, if injured by their carelessness, their master is responsible. In such a case the maxim of 'respondeat superior' does apply. The thing on which the cases turn is the presence or absence of self-interest. In the one case the person injured is a mere intruder or officious intermeddler; in the other, he is a person in the regular pursuit of his own busi. ness, and entitled to the same protection as any one whose business relations with the master expose him to injury from the carelessness of the master's servants." It was there urged, too, that the servants of defendant had no authority to make the request or give the consent relied upon, and the court answered the contention as follows: "But in the present case it is urged by the learned counsel for the railroad company that the crew in charge of the gravel train had no authority to make such a request, or give such consent, as will authorize the servants of the consignee to remove or assist in the removal of earth from the cars. We do not think that such a want of authority exists. It seems to us that the persons having the charge of freight cars are the very ones to give such consent, or to make such a request; and it has been so held, both in England and in this country." The case of Wischam v. Richards, cited and relied upon by the defendant in this case, is referred to in that opinion as upholding the doctrine herein laid down. The court say of it: "The recent case of Wischam v. Richards, 136 Pa. St. 109, 20 Atl. Rep. 532, cited by defendant's counsel, is not opposed to it. It sustains it. In that case, the plaintiff was hurt while assisting the defendant's servants in unloading a heavy fly wheel from the wagon. The court found as a matter of fact that the plaintiff was a mere volunteer, having no interest in the work which he undertook to assist the defendant's servants in performing, and, consequently, that he had no remedy against their master."

It is earnestly insisted, however, that the rule of liability cannot exist unless there was a necessity on the part of the railroad to have the services of the plaintiff, and that, if the business was that of the railroad, and it had sufficient force to perform it, then the plaintiff must be considered a volunteer and intermeddler. But none of the cases holding the company liable proceed upon this ground, but upon the more satisfactory one whether the plaintiff is to be regarded in such cases as expediting and forwarding his own business or that of the railroad company, either as an accommodation or as a necessary help. In other words, was he engaged in his own business, or that of the railroad? If the former, the road is liable if there is negligence; if the latter, he is not, because the negligence is that of a fellow-servant. And this is equally so whether his aid is necessary to

the road's performance of its duty or not. The emergency or necessity which will authorize him to aid the railroad and protect him in so doing is one that arises in his own business, and not in that of the railroad company.

NEGOTIABILITY OF GUARANTIES.

Conflict on the Subject.-Upon the question as to whether or not guaranties are negotiable, contradiction and conflict prevail in text-books and decisions. It is possible to support by authorities practically every assumable position on the subject, and extant holdings thereon cannot be brought into harmony without disputing eminent authors and judges. Among the various causes that have contributed to this state of affairs are: The failure to carefully distinguish guaranties from other classes of contracts, and to distinguish absolute from contingent guaranties, and those that are general from those that are special; the transforming of guaranties into indorsements; the confounding of terms, and what is peculiarly of effect in this connection, as Mr. Justice Bronson has pointed out,' the effort to have everything in the form of paper credit turned into a circulating medium, although thereby violence is done to the common law declaration that choses in action are not assignable. This movement or tendency toward the aid of commercial freedom has resulted in various provisions in the codes and statutes of many of the States.

Text-book Doctrines.-Mercantile guaranties are the most frequently used and consequently the most commonly and fully discussed. Story holds that where the subjectmatter of the paper is negotiable, so that a change of parties is necessarily contemplated, the guaranty should follow, and be a complete guaranty to every successive holder, and Daniel not only supports Story, but also goes to the extent of corroborating Senator Ver Planck's dissenting opinion to the effect that a guaranty on a separate paper, and not in negotiable words, ought to be held. negotiable in favor of each successive holder. Parsons on the other hand holds that while the negotiability of paper payable to order is 1 Birckhead v. Brown, 5 Hill, 634 (1843).

2 Story on Bills, sec. 458.

8 Daniel on Negotiable Instruments (3d Ed.), secs. 1777-1781. (4.Ed.) 1774+ seq.

4 McLaren v. Watson's Exrs., 26 Wend. 425. 5 Parsons on Notes and Bills, secs. 133-134.