marriage case Baron Huddleston was very much perplexed by sundry crosses at the end of loveletters put in testimony, and inquired the meaning of them. They are undoubtedly part of Mr. Ignatius Donnelly's cypher, and refer to the lines:

"The course of true love never did run smooth *** Oh, cross!" etc.

England is as far behind this country in material improvements and conveniences as she is ahead of us in legal reform. In the current number of Gibson's Law Notes we find comment on a case involving the proper mode for a passenger in a 'bus to signal his desire to get out when the conductor is on top collecting his fares. Gibson's says: "His honor, Judge Eddis, considers that knocking on the roof is not the accepted method of communication, and on that ground he decided that a lady could not recover against the company for injuries received consequent on her alighting after communicating in this way. Now it would have been much more useful, your honor, if you had laid down what is the accepted method of communication. We have done a good deal of inside 'bus travelling in our time, and we have seen many people knock, on the roof. Why should not the company have been held liable on the ground of negligence in not providing means for communication?" These English will not tolerate a strap any more than a bell cord on a railway train. So they will not have "brasses for boxes" (checks for baggage), nor conveniences on the trains for answering the calls of nature. So they hoisted goods by hand for years after we were doing it by machinery. By the way, if a passenger on top of a 'bus wants to get off while the conductor is inside collecting fares, we suppose he must use a parachute or a fire-escape.

They make some fine distinctions about "cruelty" in the Michigan divorce decisions. For instance, for a husband, in picking berries, forcibly to resent his wife's reaching over from her row to his and picking some of his best berries, is cruel, but to tell her to go home to her father with her long nose, and to call her old goat, old cow, etc., is not cruel.

The lawyer will find some good vacation reading in two little volumes of essays, entitled "Obiter Dicta," and written apparently by an English barrister. The author or his publisher - did not pay us the compliment of sending us the volumes for review, but we paid them for the books, and therefore even Mr. Bishop, who thinks so grievously of law-book reviewers, must admit that this puff is moderately honest. Among the best of these essays is one on actors, in which the writer has the courage to rate the profession not the professors at its true small worth. At the same time he admits the charms of the life. Speaking of Macready, he says: he "was always regretting heaven help him!- that he wasn't a barrister-at

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law. Look upon this picture and on that. we have Macbeth, that mighty thane; Hamlet, the intellectual symbol of the whole world of modern thought; Strafford, in Robert Browning's fine play; splendid dresses, crowded theatres, beautiful women, royal audiences; and on the other side, a rusty gown, a musty wig, a fusty court, a deaf judge, an indifferent jury, a dispute about a bill of lading, and ten guineas on your brief which you have not been paid, and which you can't recover - why, ''tis Hyperion to a satyr.'"

At Annesley & Co.'s art gallery in this city was recently shown an excellent portrait of Judge Earl, by Mr. Twitchell. We do not know, but we hope that it is to hang in the Court of Appeals chamber. It is a better painting than any but three or four now there, and it represents a magistrate of learning and force, who possesses an unusual capacity for hard work. It is well enough for the State to adorn its public buildings with expensive marbles and mahogany, but it will be even more interesting to future generations to see the reflected lineaments of the judges who have expounded the laws under which they live. There is no reading so absorbing as biography, and there is no art so interesting as portraiture.

NOTES OF CASES.

N Sullivan v. Tioga Railroad Co., 44 Hun, 304, the

IN Suicidant's railroad line terminated at Elmira.

The Erie railroad owned and controlled the yard, and when the defendant's locomotives were in it the servants employed on them were under the exclusive control of the officers of the Erie railroad, who directed how locomotives should be run, at what speed, what precautions should be used, and what signals given. Held, that the plaintiff's intestate, a laborer in the yard of the Erie road, and the defendant's employees on the locomotive, were not co-servants. The court said: "Were defendant's employees in charge of its locomotive and the decedent, employed by the Erie railroad, co-employ. ees? The defendant, at the close of the evidence, insisted that they were, and moved for a nonsuit upon this and other grounds, which was refused. The defendant requested the court to charge that if the jury found that decedent and the employees in charge of the locomotive were at the time of the accident under the control of the superintendent of the Erie railroad they were co-employees, and the plaintiff could not recover. This the court refused, and left it to be determined by the jury, as a question of fact, whether they were co-employees, saying, if they were, the plaintiff could not recover. Presumptively, the servants of two independent masters are not co-servants.

The exact relations existing between the defendant and the Erie railroad are not disclosed by the evidence. It does appear, by undisputed evidence, that the defendant's line terminated at Elmira; also that the Erie

It was

railroad owned and controlled the yard, and that when defendant's locomotives were in it the servants employed on them were under the exclusive control of the officers of the Erie railroad, who directed how locomotives should be run, at what speed, what precautions should be used and signals given. The cases cited may be conveniently divided into two classes: First, those in which the servants of a railroad corporation owning the structures, and solely controlling the manner of moving the trains of both corporations, are negligently injured by the servant of a railroad corporation having the right to use the structure under a contract. In Warburton v. Gt. West. R. Co., L. R., 2 Exch. 30; S. C., 4 H. & C. 695, the plaintiff was employed by the L. N. W. Railway Company as a porter at its station. The defendant used this station under a contract with the L. N. W. Railway Company, by which the latter company controlled the movement of defendant's trains while at the station. The plaintiff was injured by the negligence of one of defendant's engineers. It was held that the engineer and the porter were not co-employees, and that defendant was liable. In Catawissa R. Co. v. Armstrong, 49 Penn. St. 186, the defendant (plaintiff in error) ran its trains for some miles over the track of the P. and E. Railroad Company, subject to the rules and regulations of the latter corporation. Plaintiff's intestate was a brakeman, employed by the P. and E. Railroad Company, and was negligently killed by defendant's conductor. held that the brakeman of the P. and E. Railroad Company and the defendant's conductor were not co-employees, and a recovery was sustained. 1868 the rule in Pennsylvania was changed by the Legislature. Mulherrin v. D., L. and W. R. Co., 81 Penn, St. 366. In Swainson v. North East. R. Co., L. R., 3 Exch. Div. 341, the defendant's station and that of the Great Northern Railway Company abutted upon each other; each corporation owning two tracks running by the station. Trains entering into or departing from these stations were governed by signals and points, worked by signalmen, who were members of the 'Joint Station Staff.' The members of this staff (including the plaintiff's intestate) were employed and paid by the Great Western Railway Company, and wore its uniform, but defendant paid to the Great Western Railway Company one-half of the wages of the Joint Station Staff. Plaintiff's intestate, a signalman, and one of the joint staff, was killed by the negligence of an engineer of one of defendant's trains. It was held that the signalman and the engineer were not co-employees, and the action could not be defeated on that ground. The second class embraces cases in which the servants of a railroad corporation which uses, under a contract, the structure of another railroad corporation, are negligently injured by the servants of the corporation owning the structures and solely controlling the manner of moving the trains of both corporations. In Smith v. N. Y. and Harlem Railroad Co., 6 Duer, 225, affirmed, 19 N. Y. 127, the plaintiff's intestate was an engineer in the service

In

were.

of the New York and New Haven Railroad Company, which ran its trains over some miles of defendant's track. By the negligence of defendant's switchman, plaintiff's intestate was killed. The defendant, by the contract between the corporations, was bound to care for the track, and the switchman was under its exclusive control. It does not appear whether the trains of the New York and New Haven company were, while on defendant's track, subject to its control, but such is so generally the custom that it may be safely assumed that they It was held that the engineer of the New York and New Haven Railroad Company and the defendant's switchman were not co-employees, and a recovery was sustained. In Zeigler v. Danbury and Norwalk Railroad Co., 52 Conn. 543, defendant's road and that of the S. Corporation connected and formed a continuous line. A train owned and operated by S. ran daily over defendant's track, subject to the control of defendant's officers. The plaintiff was a brakeman on this train, who was injured by the negligence of defendant's conductor while on defendant's track. It was held that defendant's conductor and plaintiff were not co-empleyees, and a recovery was sustained. Sawyer v. Rutland and Burlington Railroad Co., 27 Vt. 370, is not distinguishable from Smith v. N. Y. and Harlem Railroad Co., either in facts or principles. Roach v. Fort Orange Paper Co., 18 N. Y. W. Dig. 124, affirmed, 95 N. Y. 660, is not within either class of cases, because neither master exercised control over both servants at the time of the injury. In that case the injured servant was employed and solely controlled by the railroad corporation, and the negligent servant was employed and solely controlled by the defendant. So in Stevenvon v. Atlantic Mail Steamship Co., 1 J. & S. 277; affirmed, 57 N. Y. 108, the servants were employed by, and were serving different masters, and it does not appear that either master exercised, or had the right to exercise at any time, any control over both servants. In Vose v. L. and Y. R. Co., 2 H. & N. 728, the recovery was had because the defendant negligently established defective rules, which was not the negligence of a servant, but of the principal. The following cases: P., W. and B. Railroad Co. v. State, 58 Md. 352; Snow v. Housatonic Railroad Co., 8 Allen, 441; Graham v. N. E. Ry. Co., 18 C. B. N. S. 229, arose out of the neglect of the defendants to provide safe structures master's duties whereby the servants of the corporations using the structures were injured. In Cruty v. Erie Ry. Co., 3 T. & C. 244, one of the judges expressed views not in accordance with the authorities above cited, which were not concurred in by the court, and a new trial was granted because the evidence did not show that defendant was negligent. Under the authorities, the plaintiff's intestate and defendant's employees in charge of the locomotive were not co-servants, and this action cannot be defeated on that ground. The text writers support this conclusion. Shearm. & Red. Neg., § 101; 2 Thomp. Neg., § 1043; Whart. Neg., § 231; Pierce Railroads,

defendant were duly enrolled or registered under the laws of the United States for the coasting or foreign trade of the United States, and that the gross receipts so returned to the auditor-general, upon which a tax has been levied by the Commonwealth of Pennsylvania, were received by defendants for freight and passengers carried in the said steamships on the ocean and on the navigable waters of the United States, between the State of Pennsylvania and other States of the United States, and between the States of the United States and foreign countries, and for the charter and hire of the said steamships to other parties in such trade and business, and that no part of the said gross receipts was received for the transportation of freight and passengers between places within the State of Pennsylvahia, or for the hire and use of the said steamships within the State of Pennsylvania."

On the trial of the cause the parties entered into an agreement as to the facts, showing the gross receipts for each year, in each branch of the company s trade; which facts supported the allegations of the plea. A trial by jury was dispensed with, and the court gave judgment for the Commonwealth for the principal of the tax and interest from the time of commencing suit. Exceptions were taken on the ground that the judgment was in conflict with the clause of the Constitution of the United States giving to Congress the power to regulate commerce with foreign nations and among the several States. The judgment being removed by writ of error to the Supreme Court of Pennsylvania, was affirmed by that court; and its judgment is now before us for review.

The question which underlies the immediate question in the case, is whether the imposition of the tax upon the steamship company's receipts amounted to a regulation of, or an interference with, inter-State and foreign commerce, and was thus in conflict with the power granted by the Constitution to Congress? The tax was levied directly upon the receipts derived by the company from its fares and freights for the transportation of persons and goods between different States and between the States and foreign countries, and from the charter of its vessels which was for the same purpose. This transportation was an act of inter-State and foreign commerce. It was the carrying on of such commerce. It was that, and nothing else. In view of the decisions of this court, it cannot be pretended that the State could constitutionally regulate or interfere with that commerce itself. But taxing is one of the forms of regulation. It is one of the principal forms. Taxing the transportation, either by its tonnage, or its distance, or by the number of trips performed, or in any other way, would certainly be a regulation of the commerce, a restriction upon it, a burden upon it. Clearly this could not be done by the State without interfering with the power of Congress. Foreign commerce has been fully regulated by Congress, and any regulations imposed by the States upon that branch of commerce would be a palpable interference. If Congress has not made any express regulations with regard to interState commerce, its inaction, as we have often held, is equivalent to a declaration that it shall be free, in all cases where its power is exclusive; and its power is necessarily exclusive whenever the subject-matter is national in its character and properly admits of only one uniform system. See the cases collected in Robbins v. Shelby Taxing District, 120 U. 8. 489, 492, 493. Inter-State commerce carried on by ships on the sea is surely of this character.

If then the commerce carried on by the plaintiff in error in this case could not be constitutionally taxed by the State, could the fares and freights received for transportation in carrying on that commerce be constitutionally taxed? If the State cannot tax the trans

portation, may it nevertheless tax the fares and freights received therefor? Where is the difference? Looking at the substance of things, and not at mere forms, it is very difficult to see any difference. The one thing seems to be tantamount to the other. It would seem to be rather metaphysics than plain logic for the State officials to say to the company: We will not tax you for the transportation you perform, but we will tax you for what you get for performing it." Such a position can hardly be said to be based on a sound method of reasoning.

This court did not so reason in the case of Brown v. Maryland, 12 Wheat. 419. The State of Maryland required all importers of foreign goods and other persons, selling the same by wholesale, bale or package, to take out a license and pay $50 therefor, subject to a penalty and forfeiture for selling without such license. It was contended on the part of the State that this was a mere tax on the occupation of selling foreign goods, affecting only the person and not the importation of the goods themselves, or the occupation of importing them. Chief Justice Marshall met this objection by showing that the attempt to regulate the sale of imported goods was as much in conflict with the power of Congress to regulate commerce as a regulation of their importation itself would be. "If this power," said he (referring to the power of Congress), "reaches the interior of a State, and may be there exercised, it must be capable of authorizing the sale of those articles which it introduces. Commerce is intercourse; one of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize this traffic, where given in the most comprehensive terms, with the intent that its efficacy should be complete, should cease at the point when its continuance is indispensable to its value. To what purpose should the power to allow importation be given, unaccompanied with the power to authorize a sale of the thing imported? Sale is the object of importation, and is an essential ingredient of that intercourse, of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, then, as importation itself. It must be considered as a component part of the power to regulate commerce. Congresss has a right, not only to authorize importation, but to authorize the importer to sell. * * * Any penalty inflicted on the importer for selling the article in his character of importer must be in opposition to the act of Congress which authorizes importation. * The distinction between a tax on the thing imported, and on the person of the importer, can have no influence on this part of the subject. It is too obvious for controversy that they interfere equally with the power to regulate commerce." (pp. 446-448.)

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The application of this reasoning to the case in hand is obvious. Of what use would it be to the ship-owner, in carrying on inter-State and foreign commerce, to have the right of transporting persons and goods free from State interference, if he had not the equal right to charge for such transportation without such interference? The very object of his engaging in transportation is to receive pay for it. If the regulation of the transportation belongs to the power of Congress to regulate commerce, the regulation of fares and freights receivable for such transportation must equally belong to that power; and any burdens imposed by the State on such receipts must be in conflict with it. To apply the language of Chief Justice Marshall, fares and freights for transportation in carrying on inter-State or foreign commerce are as much essential ingredients of that commerce as transportation itself.

It is necessary however that we should examine what bearing the cases of the State Freight Tax and Railway Gross Receipts, reported in 15th Wall., have upon