the nature of a creditor's bill is the proper one to reach property in the hands of one who purchased the property at an execution sale, and holds it for the benefit of the debtor for the purpose of defrauding the creditors of the debtor, and is only barred by the lapse of six years from the discovery of the fraud. (5) A defect of parties must be taken advantage of either by demurrer, if it appears in the pleadings, or by answer, if it does not appear. Jan. 17, 1888. Decker v. Decker. Opinion by Finch, J. THIRD PERSON. NEGLIGENCE-EVIDENCE-SUBSEQUENT REPAIR BY - Evidence that after plaintiff had fallen into a certain excavation, within the limits of the village, against which the action for damages caused by the fall was brought, a person living near the excavation had placed a fence about it sufficient to protect the public, is improper and inadmissible. Such evidence has sometimes been received by courts in cases where the party sued for an accident has soon thereafter made repairs or improvements for the purpose of making the machine or structure which caused the accident more secure, convenient or safe, and its admissibility has been defended on the ground that the act of making the repairs or improvements was an admission that the machine or structure was therefore imperfect, out of repair, or unsafe. We think however that such evidence does not tend to prove that the party sued knew, or was bound to know, that the machine or structure was imperfect, unsafe, or out of repair. After an accident has happened, it is ordinarily easy to see how it could have been avoided, and then for the first time it frequently happens that the owner receives his first intimation of the defective or dangerous condition of the machine or structure which caused or led to the accident. Such evidence has no tendency whatever, we think, to show that the machine or structure was not previously in a reasonably safe or perfect condition, or that the defendant ought, in the exercise of reasonable care and diligence, to have made it more perfect, safe and secure. While such evidence has no legitimate bearing upon the defendant's negligence or knowledge, its natural tendency is undoubtedly to prejudice and influence the minds of the jury. Hence in this court, and generally in the Supreme Court, it has been held erroneous to receive such evidence. In Salters v. Canal Co., 3 Hun, 338, it was held erroneous to admit evidence to show that after the accident the railroad company changed the character of its switch. Landon, J., writing the opinion, said: "The plaintiff was permitted to give evidence to the effect that after the accident the defendant substituted a target switch for the common one. Within the ruling in Dougan v. Transportation Co., 56 N. Y. 1, this seems to be error. Whether the defendants were negligent was a question to be decided upon the facts as they existed at the time of the injury. What the defendants did afterward was immaterial, unless their acts could be construed as equivalent to their declaration that they were negligent at the time of the injury. But the question appears to be settled by authority, and not open for discussion in this court." In Payne v. Railroad Co., 9 Hun, 526, the action was to recover damages for an injury to plaintiff's horse, received while passing over a crossing upon defendant's track. The plaintiff was allowed, against defendant's objection and exception, to show that shortly after the accident the defendant took up the planks at the crossing, and replaced them by new ones. This was held to be error. Learned, P. J., writing the opinion, said: "The only way in which such subsequent acts could bear upon the question would be as an admission that they had been negligent. So a jury would be likely to understand such proof. Yet it would plainly be unjust to the de fendants that they should not take additional precautions against accidents, without the risk that these precautions should be construed into an admission of prior negligence. To put down a new plank was an act which the defendants might do for various reasons. Yet it would be easy to argue from that act to a jury that the defendants themselves knew that the crossing had been badly constructed or was out of repair. It seems to me that the evidence was improperly admitted, and that a new trial is therefore necessary." ." In Dougan v. Transportation Co., 56 N. Y. 1, plaintiff's intestate slipped from the deck of a steamboat under the outer railing, and was drowned, the proof was offered by the plaintiff that after the accident the defendant boarded up the space between the railing and the deck; and this court held that the evidence was properly excluded. Grover, J., writing the opinion, said: "This was immaterial; its negligence is to be determined by what was known before and at the time of the accident." In Dale v. Railroad Co., 73 N. Y. 468, the plaintiff was a passenger on one of defendant's cars, and was seated near an open window, with his elbow on the window-sill, and while passing over a bridge his elbow was struck by some substance, and his arm broken. It appeared that some months after the accident the bridge was removed, and replaced by an iron one, with trusses that did not rise as high as the window-sill. Testimony was received, under objection, to the effect that on the new bridge the distance between the rails and the sides of the trusses was greater than the old one. The court charged the jury that they might take that fact into consideration in determining whether the defendants were not guilty of negligence in allowing the old bridge to remain. This charge was held to be erroneous. In all the cases to which we have thus called attention the change or improvement after the accident was made by the defendant in the action. But here the additional protection against danger was erected after the accident by the owner of the adjoining property, who had no connection whatever with the defendant. Even if it could have been claimed that this act, if it had been done by the defendant or under his orders, would in any degree have been a confession that the area was previously insufficiently protected, and that thus the defendant had been previously negligent, yet the act of a stranger certainly could furnish no legitimate evidence against the defendant, and we cannot say that it did not have some influence upon the jury in reaching their verdict. Jan. 17, 1888. Corcoran v. Village of Peekskill. Opinion by Earl, J.; Danforth, J., dissenting. STATUTE OF FRAUDS-ORIGINAL AND COLLATERAL PROMISE.-Defendant was a creditor of the firm of Wheatcroft & Rintoul to the amount of $5,000, for which he was fully secured by a chattel mortgage. He promised the plaintiff, who was the holder of two notes against the said firm, nearly matured, that if the plaintiff would wait a certain time after their maturing the defendant would pay such notes, at the same time informing plaintiff of his chattel mortgage, and telling him that he could not collect the notes. Held, that the promise, not being in writing, under the statute of frauds is void. The plaintiff has recovered upon a verbal promise to pay the debt of another and seeks to maintain his position in part upon the definition of an original promise framed in the old and familiar case of Leonard v. Vredenburgh, 8 Johns. 29. That definition assumed, as the test of an original promise, that it was founded on a new or further consideration of benefit or harm moving between the promisor and promisee. There was found in this some accuracy of expression, for since every promise must have some consideration, to be valid at common law, and that necessary and inevitable consideration, wherever the debt to be paid antecedently existed, is always "new" and further," because different from that of the primary debt, and since also such new consideration does frequently move between the newly-contracting parties, giving benefit to promisor or harm to promisee, it became apparent that the terms of the definition were dangerously broad, and capable of a grave misapprehension, making it almost possible to say that a promise good at common law between the new parties was good also in spite of the statute. This difficulty was disclosed and measured, and then remedied, in Mallory v. Gillett, 21 N. Y. 412, by a divided court, it is true, but upon a prevailing opinion so strong in its reasoning, and so clear in its analysis, as to have commanded very general approval. The case was one where, in reliance on the promise made, the promisee had released to his debtor a lien which gave his debt protection. Within the language of the rule in Leonard v. Vredenburgh, the promise was original, and not within the statute, since the consideration which supported it was "new" and "further," and passed between the newly-contracting parties, and consisted in the harm to the promisee involved in the surrender of his lien. But the promise was nevertheless held to be collateral, and the earlier definition modified so as to require that the new consideration should move to the promisor, and be beneficial to him. This claim shut out at once from the class of original promises all those in which the consideration of the promise was harm to the promisee, and the resultant benefit moved to the debtor instead of the promisor. The ground of the doctrine thus asserted was explained by the test then prevailing in Massachusetts, declaring the promise original where its leading and chief object is to subserve or promote some interest or purpose of the promisor himself, and upon which the respondent very much relies. Nelson v. Boynton, 3 Metc. 396. That this expression was understood to mean not merely some moral or sentimental object, but to relate to a legal interest or purpose tangible by the law, and a product of the consideration received from creditor or debtor, is apparent from the further current of the explanation. The learned judge contrasts a case in which the consideration benefits the debtor, but in it the promisor has no personal interest or concern, with one in which the consideration is the product of some new dealing between creditor or debtor and promisor, and in which the latter has a personal interest. That is what he means by a consideration of benefit moving to the promisor, and to obtain which is the object of the promise. But the rule thus stated and explained was again narrowed and restricted. In Brown v. Weber, 38 N. Y. 187, it was asserted that a promise might still be collateral, even though the new cousideration moved to the promisor, and was beneficial to him. It was distinctly said that the existence of those facts would not in every case stamp the promise as original, but the inquiry would remain whether such promise was independent of the original debt or contingent upon it. The court added: "The test to be applied to every case is whether the party sought to be charged is the principal debtor, primarily liable, or whether he is only liable in case of the default of another third person; in other words, whether he is the debtor, or whether his relation to the creditor is that of surety for the performance by some other person of the obligation of the latter to the creditor." If this statement was not needed for a determination of the case, or the generality of its language left it debatable what precise limitation or qualification was intended to be added to the rule of Mallory v. Gillett, both difficulties were removed by the recent case of Ackley v. Parmenter, 98 N. Y. 425, in which Rapallo, J., states with precision and accuracy the doctrine of the court. The debt there was the debt of one Sullivan, and the verbal undertakings were held to be within the statute, unless the defendant, before making the promise, had so dealt as to make Sullivan's debt his own, or had incurred a duty to pay the amount owing from Sullivan to the plaintiff. It was added, relatively to one possible view of the facts, that the plaintiff's undertaking was to pay out of the proceeds of the stock, and his duty to pay would not arise until he had converted the stock into money. "Consequently," it was concluded, "at the time of the alleged promise, he was under no present duty to pay, and the promise, though founded on a good consideration (viz., the adjournment of the sale) was nevertheless an undertaking to pay the debt of another." These four cases, advancing by three distinct stages in a common direction, have ended in establishing a doctrine in the courts of this State which may be stated with approximate accuracy thus: That where the primary debt subsists, and was antecedently contracted, the promise to pay it is original when it is founded on a new consideration moving to the promisor, and beneficial to him, and such that the promisor thereby comes under an independent duty of payment, irrespective of the liability of the principal debtor. The defendant was a secured creditor of the firm. Delay on the part of plaintiff is not shown to have been of the slightest consequence to the inter. est of defendant. It is not pretended that this security was inadequate. Beyond that, he asserted that he was to be first paid, and that plaintiff could get nothing if he sued. When the conversation took place the first note had not matured, and could not be sued under about a fortnight. It is not suggested or shown that defendant's claim was not due, and there was ample time, if further security was needed, to sue and levy in advance of plaintiff. That delay by the latter was in the slightest degree material to the safety of defendant's debt is a purely gratuitous assumption. The evidence is all to the exact contrary. The motive disclosed vas regard for his son and desire that his busi. ness credit should not be damaged by a failure. The purpose for which he sought delay was wholly in the interest of that son, and to enable him to market his beer the next summer, and so procure the means to pay the plaintiff without sacrifice or discredit. The debt of the firm was in no sense defendant's debt. No consideration of benefit moved to him from either party, and least of all had there been any new dealing with either which put upon him a duty of payment. Before the promise was made he owed no such duty, and came under no such obligation. The doctrine of this court clearly stamps the promise as collateral and void for want of writing. Jan. 17, 1888. Rintoul v. White. Opinion by Finch, J. * * * SURETY-LIABILITY-INSURANCE-BOND OF AGENT. (1) A contract of employment between a life insurance company and its district agent provided that the company should, for six months, "advance" to the agent $200 a month, the money to be used by him in advancing the interests of the company in his "territory," and "to remain a lien on all business secured to the agent under the contract, until repaid, with interest," etc. Held, that there was no personal liability of the agent for the money so advanced, and that his sureties on a boud, conditioned that he should "discharge his duties as agent," and "pay over all moneys belonging to the company," were not liable for his failure to do so. (2) The contract provided that the agent should "carry out in good faith all contracts then in force" with its sub-agents theretofore appointed by it in his "territory; " and further, that for the purpose of developing said agency in his "territory" the district agent should be allowed an additional commission of fifteen per cent 64 on the premiums of all new policies placed by himself or his agents in the said field" during a certain time. Held, that the district agent was entitled to the fifteen per cent commission on premiums paid into the company by the sub-agents during said time. Jan. 17, 1888. Northwestern Mut. Life Ins. Co. v. Mooney. Opinion by Danforth, J. VENDOR AND PURCHASER-PURCHASE-MONEY MORTGAGE-AGREEMENT WITH GRANTEE OF VENDEE -PER ted States, § 4965, which provides that when any one MARINE SEAWORTHINESS - SUBSEQUENT DAMAGE-LIMITATION OF LIABILITY-LOSS BY BROKEN MACHINERY-PROXIMATE CAUSE-ORDINARY CARE-TOWING DISABLED TUG PAST PORT-BURDEN OF PROOF-TRIAL-OBJECTIONS-WAIVER-WITNESS CREDIBILITY-EXPERTS EVIDENCE RES GESTÆ (1) In the insurance of a vessel upon a time policy, the SONALTY.- Plaintiffs, the holders of certain purchasemoney mortgages upon propety conveyed by them to C., and simultaneously and with their knowledge by C. to P., agreed with P. that in consideration of the payment by him of the cash payment necessary to entitle C. to a conveyance from plaintiffs, P. should have the right to remove and sell the plant of a marine railway on the premises. Held, that the agreement was valid, though by parol, and being between different parties, not within the rule forbidding parol evidence to contradict a written instrument; and that the railway plant, though attached to the realty, was thereby reimpressed with the character of personalty, and was not covered by plaintiff's mortgages. There can be little doubt however that the machinery, shafting, rollers and other articles became, as between vendor and vendee, and mortgagor and mortgagee, fixtures, and a part of the realty. McRae v. Bank, 66 N. Y. 489. But as by agreement, for the purpose of protecting the rights of vendors of personalty, or or creditors, chattels may retain their character as chattels, notwithstanding their annexation to the land in such a way as, in the absence of an agreement, would constitute them fixtures (Ford v. Cobb, 20 N. Y. 344; Sis-peared that the tug broke her shaft, and was taken in son v. Hubbard, 75 id. 542), so also it would seem to follow, that by recent conversion, the owner of land can reimpress the character of personalty on chattels, which by annexation to the land have become fixtures, according to the ordinary rule of law, provided only that they have not been so incorporated as to lose their identity, and the reconversion does not interfere with the rights of creditors as third persons. The plant and machinery in question was personal property when placed on the land, and the only issue presented is, did the plaintiffs agree with Post that he might take the title to the plant and machinery for the security free of the mortgage, and remove them at any time from the mortgaged premises, thereby reimpressing the property with the character of personalty? In determining this question it does not seem to us to be very material to inquire whether the deed from the plaintiffs to Cooney (the nominee of Carroll) and the mortgage back, embraced or was intended to embrace the plant and machinery. Post was not a party to the instruments, and is not concluded by them. The rights of Post depend wholly upon his agreement with the plaintiff, and if they receive his money upon the agreement that he should have the plaut and machinery, with the right to remove them without restriction as to time, the agreement was valid, although by parol, and even if it contradicts the legal import of the mortgage. Jan. 17, 1888. Tyson v. Post. Opinion by Andrews, J. tow by another tug, and while being towed sprung a leak and sunk. Held, that the insurer would not be released from liability because of the existence of one of the excluded causes, unless the loss was shown to be due to that cause. (3) It appeared that the tug was towed past two ports of repair on her way home, and then sprung a leak and sunk. Held, that it was proper to instruct the jury that permitting the tug to be towed in that coudition past two ports of repair would not of itself constitute a breach of the policy, but it was for them to consider whether the master was guilty of lack of ordinary care and also whether the condition of the vessel was the cause of her ultimate loss. (4) And in such case it was proper to charge the jury that while the breaking of the shaft might have rendered the tug unseaworthy for propelling herself, it was competent for the insured to show that she was seaworthy to be towed to her home port. (5) Where the defendant, in its answer, alleges as a special defense that the loss was occasioned by the want of prudence and ordinary care, it is proper to instruct the jury that the burden is on the defendant to show the lack of ordinary care by a fair preponderance of testimony. (6) Where, after the introduction of the plaintiff's testimony, the defendant moved for a verdict, which motion was refused, the subsequent introduction of testimony by the defendant is a waiver of all objections to the refusal of the motion to direct a verdict. (7) In an action on a policy of marine insurance, where the issue was the negligence of the master of the vessel, witnesses who are shown to have been seamen for twenty and thirty years are competent to give testimony as experts, and the weight to be given to their evidence is a question for the jury. (8) Statements made by the captain, after they were taken in tow, cannot be admitted in evidence, unless shown to be part of the res gesta. (9) Where, after notice, the defendant company failed to produce the proofs of loss made by the insured, the plaintiff had the right to show the facts contained therein by secondary evi dence. (10) Where a general exception is taken to the refusal of the court to change a series of propositions, such exception is bad if one of the series is objectionable. Jan. 30, 1888. Union Ins. Co. Philadelphia v. Smith. Opinion by Blatchford, J. OFFICE AND OFFICERS PUBLIC OFFICERS" REV. STAT. U. S., § 3639.-The Revised Statutes of the United States, § 3639, provides for the safe-keeping of public money which may come into the hands of public officers, until transferred or paid out by them. Held, that a clerk in the office of the collector of customs for the collection district of the city of New York is not such a public officer charged with the safe-keeping of public money, and is not indictable as a public officer for the unlawful conversion to his own use of such public money. A clerk of the collector is not an officer of the United States within the provisions of this section; and it is only to persons of that rank that the term public officer, as there used, applies. An officer of the United States can only be appointed by the president, by and with the advice and consent of the senate, or by a court of law, or the head of a department. A person in the service of the government who does not derive his position from one of these sources is not an officer of the United States in the sense of the Constitution. This subject was considered and determined in United States v. Germaine, 99 U. S. 508, and in the recent case of United States v. Mouat, 124 U. S. What we have here said is but a repetition of what was there authoritatively declared. A clerk of a collector, holding his position at the will of the latter, discharging only such duties as may be assigned to him by that officer, comes neither within the letter nor the purview of the statute. The case of United States v. Hartwell, 6 Wall. 385, does not militate against this view. Feb. 6, 1888. United States v. Smith. Opinion by Field, J. PARTNERSHIP-TAXES ON PROPERTY-PAYMENT OF ONE-HALF-JOINT LIABILITY.-In the years 1880 and 1881 plaintiff and defendant were copartners in the hotel business, each owning an undivided one-half of post-office, to place any letter in, or receive any letter from, any post office. Held, that an indictment under the statute is insufficient which only charges the offence in general language, without disclosing the particulars of the alleged scheme or artifice to defraud, and such an omission is matter of substance, and not of form, and cannot be aided or cured by the verdict. Jan. 30, 1888. United States v. Hess. Opinion by Field, J. SALE-DUTY TO DELIVER-offer of PERFORMANCE -INSOLVENCY-CHECK-EQUITABLE ASSIGNMENT.— (1) Shipments of iron ore, as required by a contract of sale, were made from the place of delivery, until by reason of the apprehended insolvency of the vendee, the vendor suspended further shipments. At that time the vendor had at the place of delivery the balance of the ore, which, by the contract, was to be subject to its order until forwarded, but did not offer to make any further shipments, and did not give notice of its readiness to do so; nor did the vendee corporation nor its receiver, who meanwhile had been appointed, call for the ore, or offer cash in payment. The vendor, in pursuance of an order to present claims, filed its claim for the difference between the contract price of the undelivered ore and its then present value. Held, that the vendee's insolvency did not release the vendor from offering to deliver the property, and that the evidence justified the conclusion that the contract had been rescinded. (2) A check not drawn against any particular fund does not of itself operate as an equitable assignment of funds deposited to the drawer's credit. Jan. 23, 1888. Florence Min. Co. v. Brown. Opinion by Field, J. SHIPPING REGULATION OF CARRIAGE OF PASSENGERS - PENALTIES.-The Revised Statutes of the United States, § 4270, which provides that the penalties imposed by the foregoing provisions, regulating the carriage of passengers in merchant vessels, shall be liens upon such vessels, applies to those sections which declare a "fine" for the violation of its provisions, as well as those which declare a penalty eo nomine; and a fine incurred by a violation of the Revised Statutes of the United States, § 4253, which prohibits carrying any greater number of passengers than is allowed by the Revised Statutes of the United States, § 4252, is therefore a lien upon the vessel. The lien for carrying passengers in excess of the limit prescribed by the Revised Statutes of the United States, § 4252, cannot exceed the amount of the fine imposed upon the master of the vessel upon criminal prosecution for the offense. Under 19 United States Revised Statutes, p. 250, chap. 69, extending the provisions, penalties and liens relating to the space in vessels ap the hotel, and the furniture and personal property therein. In October, 1881, the partnership was dissolved, and defendant rented of plaintiff his undivided half for the term of two years. On the 1st of May, 1882, plaintiff and defendant were indebted for taxes assessed against their joint property for the years 1880 and 1881, in the sum of $630. One-half of this sum defendant paid. Held, that the $315 of unpaid taxes was a joint liability upon the property of the firm; that it was the duty of defendant, who was in possession of the property, to pay the taxes; and payment of one-half of the taxes did not discharge him from the obligation to pay the other half. And this obliga-propriated to the use of passengers to all spaces appro tion was not satisfied or discharged by the alleged statement of plaintiff to defendant that if he paid plaintiff's one-half of the taxes, he would not allow it to him in the payment of rent. Jan. 23, 1888. Chapin v. Streeter. Opinion by Miller, J. priated to the use of steerage passengers, in vessels propelled by steam, the United States has a lien upon a steam-vessel for violation, as to steerage passengers, of Revised Statutes of the United States, § 4255, regulating the size, position and arrangement of berths: but not for violation of the Revised Statutes of the United States, § 4266, providing that the master of any vessel arriving from abroad shall give the district collector a list of the passengers on the vessel taken on board at any foreign port, the latter provision not being within the purview of the extending statute. Feb. 13, 1888. The Strathairly; United States v. The PATENTS- PRIOR STATE OF ART PRESERVING BONDS.-A scheme for preserving, filing and cancelling bonds, etc., by pasting them in blank books with appropriate spaces for data, differing from one previously in use only in providing spaces in the file books for the bonds, and in grouping the coupons according to the dates of payment, instead of with the bonds to which they belong, does not involve a patent- Strathairly. Opinion by Matthews, J. able novelty. Feb. 13, 1888. Munson v. City of New York. Opinion by Gray, J. POST-OFFICE-USE OF, TO DEFRAUD-INDICTMENT.— The Revised Statutes of the United States, § 5480, renders it criminal for any person, having devised a scheme or artifice to defraud other persons by inciting them to open communication with him through the ABSTRACTS OF VARIOUS RECENT DE- CONSTITUTIONAL LAW — SALE OF INTOXICATING LIQUOR State may, under its police power, not only regulate, but restrict, the retail liquor traffic. It is insisted however by distinguished counsel, with zeal and ability, that liquor is property; that this act forbids its sale, and is in effect a spoliation of it; that it is an exercise of absolute, arbitrary power over the property and individual right of the freeman, and is there fore interdicted by our bill of rights and the four teenth amendment to the Constitution of the United States. It is now settled however by not only the decisions of the Supreme Court of the United States, but by the highest court of nearly every State in the Union, that the Legislature of a State may, under that police power which is vital to its existence, not only regulate, but restrict, the retail liquor traffic. It would be singular if it could not do so, if government be instituted for the good of the governed. If an evil which destroys the morals, the fortunes and the lives of so many of our best citizens - one which is so fruit ful of pauperism and misery, and productive of probably eight-tenths of the crime in the country - was not subject to the legislative power, it would be strange indeed. If so, then all manner of crime is to be punished, and yet the people are powerless to wipe out the active cause of it. Surely one cannot exercise a right, and much less a mere privilege which may be revoked at any time, if it be destructive of the public morals or public health or public peace, and yet be beyond the reach of the legislative power. No one has ever had the right to sell whisky in this Commonwealth save as a privilege; it has always been the creature of license. The police power is properly and necessarily a broad one; it is difficult, if not impossible, to fix its limit. The property owner acquires and holds his property subject to the right of the Legislature, under this power, to control it, whenever the public peace or public morals or the public health is involved; otherwise the many would be at the mercy of the few; lawlessness and disorder would take the place of law and order, and the appetites and passions of a few persons would imperil the public peace, and endanger our social fabric. The individual profit of the few, arising from the wreck of fortunes, homes and lives, must give way to the happiness and security of the many. It belongs to the legislative department of the government to exercise this necessarily sweeping power, and determine primarily what measures are needful for the protection of the public health, the public morals, and the public safety. If a statute upon the subject has in reality no relation to those objects, and is a plain invasion of some private right secured by the organic law, then it would be one of the highest duties of a court to declare it a nullity; but this cannot be said of a law which controls and regulates a traffic which is an admitted evil in society. We have as yet not seen an official copy of the decision of the Supreme Court of the United States in the Kansas Liquor cases, quite recently decided, of Mugler v. State of Kansas and State v. Ziebold, 8 Sup. Ct. Rep. 273; 36 Alb. L. J. 525, but as reported in the public prints the highest court in the land has unanimously declared that this right of protection-this police power-extends so far that the Legislature of a State may prohibit the manufacture of liquor for the maker's own use as a beverage, if in its judgment this would tend to defeat its efforts to guard the community against this evil. The prohibition of the manufacture or sale of liquor does not deprive the owner of his property; it is not taking it without due process of law; it is not an exercise of the right of eminent domain, by which the owner can be deprived of his property only upon the condition of compensation. A nuisance merely is abated, and the citizen forbidden to do that which is injurious to the community. It is insisted however that the law now under considera tion is unconstitutional, because of its sweeping character; that it not only forbids the sale of liquor by retail or as a beverage, but for religious or medicinal purposes. Even if it were true that under it a physician of Lincoln county could not prescribe it as a medicine, or admitting that its proper constructions forbids the sale in toto, and not merely as a beverage, yet the appellant is not in a position to call in question its constitutionality upon this ground. He is asking that it be declared unconstitutional because it prevents him from obtaining the privilege of selling liquor by retail or as a beverage. Prescriptions are not filled in barrooms, nor is the communion table supplied from such places. We must look at things as they are. not as they might be, in considering questions involving the exercise of the police power. It is unnecessary to decide whether the law-making power, in its exercise, may forbid the sale of an article for innocent, proper and even useful purposes, upon the ground that it will be productive of deceit, and in effect defeat its effort to protect the health, morals and peace of the community from the ills arising from other uses of the article, since the appellant cannot be heard to say that the law is invalid and unconstitutional upon a ground which in no way affects his rights. It was said in the case of Com. v. Wright, 79 Ky. 22: "Only those who are prejudiced by an unconstitutional law can complain of it." Mr. Cooley, who is probably the most distinguished writer of the present day upon constitutional power and its limitations, enforces this view; and in the case of Sullivan v. Berry's Adm'r, 83 Ky. 198, it was fully considered and reaffirmed upon a review of numerous authorities. Jones v. Black, 48 Ala. 540; Williamson v. Carlton, 51 Me. 449; Dejarnett v. Haynes, 23 Miss. 600; Turnpike Corp. v. County of Norfolk, 6 Allen, 353. The appellant only asks that he be allowed "to retail" liquor by opening a bar-room in a hotel. He has no interest, so far as the record discloses, in the sale of it for medicinal or religious purposes. He makes no such question. The right he asks cannot be considered as fairly involving it; and the court has neither the inclination nor the right, in this character of a case, to go out of its way in search of such a question, or to consider it at the instance of one who has no right to ask it, because it does not affect his rights, and is not involved in the consideration of the privileges sought by him. Ken. Ct. of App., Dec. 10, 1887. Ex parte Burnside. Opinion by Holt, J. DAMAGES GOODS TO BE MANUFACTURED-REFUSAL TO ACCEPT.—The court, on the trial of a suit against defendants for breach of contract in refusing to inspect and accept lumber manufactured for them, instructed the jury to award the contract price as damages, if they found for plaintiff, less necessary expenses for loading, freight, etc., if delivery had been required, while defendants claimed the difference between the contract price and the market value as the proper rule. Held, that the measure of damages for articles manufactured to order, their value consisting chiefly in labor and skill, was correctly stated by the trial court. For the lumber sawed, but which the defendants refused to have inspected at the mill, and refused to accept, there is want of uniformity in the rulings of different courts. As a general rule, in actions by the vendor against the vendee, for the non-acceptance of property sold or contracted for, the measure of damages is the difference between the price agreed upon, and the market value of the property at the time and place of the delivery. The vendor may resell at the time and place, or within a reasonable time, and the price at the resale will be taken as determining the market value. Rickey v. Tenbroeck, 63 Mo. 564; Northrup v. Cook, 39 id. 208. Some cases hold that there can be no recovery of the contract price of articles to be manufactured or produced until the |