THE CHICAGO LAW JOURNAL. The Chicago Law Jounral. CHICAGO, MAY, 1885. CONTENTS. Central Law Association... Notes of Cases.... Federal Courts.. English High Court.. Appellate Court of Illinois First District 7 Texas Court of Appea's. W. U. Tel. Co. v. McKinney NOTES OF CASES. 137 In this issue we publish a decision by the Texas Court of Appeals touching the liability of telegraph companies - II. U. Tel. Co. v. McKinney in which the rule established in some former opinions of the same court are overruled. Although the ..130-134 and 153-155 telegraph has been in use now over forty years as a means of communication, yet the 1 principles of law fixing the rights and liabilities of the telegraph company and its patrons are by no means well settled. 137 141 141-142 142 145 145 148 148-151 With the December Number of the current volume of THE JOURNAL, A COMPLETE INDEX TO VOLUME VI, will be furnished to subscribers FREE. How far telegraphic companies are common carriers; to what extent they have a right to avoid their liability for negligence; THE CHICAGO LAW JOURNAL what the rule of damages is for failing to send is published on the first of each month a message correctly; whether the recipient and mailed to subscribers at the low price can recover damages for a mistake, or only of $1.50 per annum, postage paid. the sender. these and many other questions are yet to be difinitely settled in this country. If the numerous rules, regulations, and exceptions found on the blanks of a telegraph company's forms were all We will continue to give from sixteen to valid, the company would in no case be eighteen pages of reading matter in each liable for damages. The courts have been issue, which will consist chiefly of brief obliged to hold that public policy forbade digests of recent decisions of the Court of the company to shirk its duty as a common last resort of the several states, and of the carrier to such an extent. A new institution, United States, carefully selected, with a the telephone, of more recent growth than view to their practical importance, RE the telegraph company, forms a new factor PORTED ESPECIALLY FOR THE and in cases touching upon the corporations JOURNAL, or in American Law Periodicals, and their rights and liabilities, in the applicagiving a syllabus of each case, together tion of old principles to new cases, the rules with the name, page and date of the Jour- established are in many cases in conflict nal or RECORD where a full report of the with each other. case may be found. The purpose is to advise our patrons of questions decided in the latest cases of importance, and HOW and WHERE complete reports of the same may be obtained. Subscriptions may commence with any month in the year. TERMS. One copy one year, in advance.. A SHERIFF was on his way to attach the land and personal property of a debtor, and stopping over night at the house of plaintiff, who was a creditor of the defendant against whom the attachment was about to be served, gave plantiff notice of where he was going and of the service he was going to $1.50 make. The plantiff started hastily, and 20 arriving in advance of the sheriff, offered the debtor a certain amount for his property which was accepted. A bill of sale was made of all of said property and delivered to him. One hour later the sheriff arrived 2.00 We continue to send THE JOURNAL to all subscribers until all arrears are paid and we are requested to stop it. CHICAGO LAW PUB. CO. when the plantiff informed him that he had merchant is a libel, and implies malice; but purchased. the property and exhibited to whenever the author or publisher acting in him the bill of sale. The sheriff, disregar- the bona fide discharge of a public or private ding plantiff's claim of ownership, seized the duty, legal or moral, or in the prosecution property. of his own rigths and interests, that which is This action is brought against the sheriff communicated in writing under such circumfor a wrongful levy. Judgement was rend- stances is a privileged communication unless ered in the trial court for plaintiff and defend- it is actuated by malice. If it is a privileged ant appealed --- Camaita v. Kyle Sup. communication then, although the stateCourt of Nevada where the Judgment ments are defamatory, actual malice must was reversed. Judge Leonard in the opinion, be proved to entitle the aggrieved party to said: "The delivery of a bill of sale was not recover damages. A communication is even a symbolical delivery of the personal privileged within the rule when made in good property described in it. Nor did the de- faith in answer to one having an interest in parture of L. from the place with the general the information sought, and it will be privideclaration that he left C in possession of leged when volunteered if the party by whom everything amount to a delivery and the it is made stands in such relation to him as taking possession of the charcoal and wood. Undoubtedly the plaintiff might have taken possession of the personal property in some proper manner before the levy, and had he done so there would have been a complete delivery and change of possession. to make it a resonable duty, or at least proper that he should give the information. Applying the rule here, it being in proof that the defendant communicated the alleged libelous matter to its subscribers in Minneapolis and Duluth, who had an intrest in knowing it, and the communication is also THE Bradstreet commercial Agency made volunteered to other persons who stood in the following report concerning an elevator such relations to the defendant as to make in Minneapolis: "This elevator has been it a resonable duty or proper that such condemned as unsafe, and the Chamber of information should be given. so that the Commerce declines to accept or do business conduct of the defendant consists of answers with their wheat checks. The facts of the in writing to inquiries made or volunteer case seem to be that Locke has misled the information given to those who had an other investors, and put up a building which interest in it and there was just occasion for is unsafe for business and stands idle. The imparting to them. Therefore I instruct you investors seem to regard themselves as that the imformation given was a privileged having been victimized. The company communication. You must determine cannot be considered as having a basis of whether this privileged communication was any credit." defamotory and actuated by malice. In a case like this the falsehood of the statement and the absence of probable cause will amount to a proof of malice; and if you find that the statement was made without exercising ordinary care and caution in collecting the information. and without reason to believe in its truth. you will find for the plaintiff; but if you find that the plaintiff has not rebutted the presumption which attaches to the statement as a privileged communication, then the defendant is entitled to a verdict." The jury gave the defendant a An action was brought dy Locke v. The Bradstreet Company for damages for having made a false and damaging report, and it was recently decided, in the U. S. Circuit Court for the District of Minnesota, in favor of defendant. Judge Nelson in charging the Jury instructed them as follows: "It is my duty to instruct you that every willful and unauthrized publication, written or printed, which imputes to a merchant or other business-man conduct which is injurious to his character or standing as a business-man or verdict. In conclusion, Justice Matthews, who delivers the opinion of the court, says with reference to the constitutionality of the above-mentioned act: "Counsel for the appeliants in the argument seemed to question the constitutional power of Congress to pass the act of March 22, 1882, so far as it abridges the rights of electors in the Territory under the previous laws. But that question is, we think THE Federal board of commissioners an election of its officers or the making of oppointed under the act of March 22, 1882, its laws; and it may therefore take from to have supervision in certain matters in them any rigth of suffrage it may previously the goverment of Utah, were defendant in a have conferred, or at any time modify or case recently (March 23rd) dicided in the abridge it, as it may deem expedient. * Supreme Court of the United States. The The personal and civil rigths of the inhabielection officers appointed by this board, tants of Territories are secured to them as required of applicants for registry that they to all other citizens, by the principles of swear that they are not maintaining bigamous constitutional liberty, which restrain all relations in violation of the law. The agencies, government, State and National; exercise of this right was made the question their political rights are franchises which in litigation. The Supreme Court holds they hold as privileges in the legislative that these requirements were without au- discretion of the Congress of the United thority and void. States If we concede that this discretion in Congress is limited by the obvious purposes for which it was conferred, and those purposes are satisfied by measures which prepare the people of Territories to become citizens of States in Union, still the conclusion can not be avoided that the act of Congress here in question is clearly wthin that justification. For certainly no legislation can be supposed more wholesome and necestary in forming a free, self-governing commonwealth to be fit to take rank as one It has passed beyond the stage of contro- of the co-ordinate Stats of the Union than versy into final judgment. The people of that wich seeks to established it on the basis the United States, as sovereign owners of the of the idea of the family, a consisting in and national territories, have supreme power springing from the union, for life, of one over them and their inhabitants. In the man and one woman in the holy state of exeicise of his sovereign dominion they are matrimony; the sure foundation of all that represented by the Government of theUnited is stable and noble in our civilization; the States to whom all powers of government best gurantee of that reverent morality which over that subject have been delegated, is the source of all beneficent progress in subject only to such restrictions as are social and political improvements. And to expressed in the constitution or necessarily this end no means are more directly and implied in its terms, or in the purposes and immediately suitable than those provided by objects of the power itself. this act, which endeavors to withdraw all political influence from those who are practically hostiled to its attainment." NO LONGER OPEN TO DISCUSSION. The judgmentt of the court below in the cases of Jesse J. Murphy, Ellen C. and Hiram B. Clawson, and J. M. Barlow are affirmed as to all the defendants below and In ordaining a government for Territories and the people who inhabit them all the discretion which belongs to the legislative power is vested in Congress, and that extends, beyond any controversy, to deter mining by law from time to time the form of local government in a particular Territory the appellees here. In the cases of Mary and the qualifications of those who shall administer it. It rests with Congress to say whether in a given case any of the people resident in a Territory shall participate in Ann and M. Pratt and Mildred E. and Alfred Pratt. As to them the Judgments are rever- Supreme Court of Wisconsin, in which it is sed and the case remanded, with directions held that one who becomes the owner of all to overrule the demurrers. the stock in a corporation does not thereby Judge Field dissented from parts of the become the legal owner of its property and opinion of the Court. AMERICAN LAW REGISTER. THE AMERICAN LAW REGISTER for April containg the case of Piollet v. Simmers Supreme Court of Pennsylvania in which it is held that the owner of land through which a public highway passes, has a right to use the highway temporarily in a reasonable manner, in derrogation of the rights of the public. Where the owner of land, engaged in whitewashing the fence adjacent to the roadway, used a barrel filled with whitewash and moved it along the way on wheels, a horse passing along the highway was afrightened thereby and become injured. Held that the owner of the land was not liable for damages for the injury. Also, the case of Moore v. Monroe, Supreme Court of Iowa in which it is held that an injunction will not be granted to restrain the reading of the bible in a public school at the suit of a taxpayer whose children are not required to be present at the reading. Also the case of Blandy's Administrators v. Hall & Co., Supreme Court of Ohio, in which it is held that a Mortgage which is invalid as to creditors of the mortgagor, or is invalid as against his assignee for the benefit of credi tors. cannot maintain replevin therefor in his own name. Also the case of Commonwealth v. Pierce Supreme Court of Massachusets in which it is held that a druggist can be convicted of manslaughter on account of gross negligence in administering a prescription without any guilty intent. Also the case of Wadsworth v. Schisselbaur, Supreme Court of Minnesota in which it is held that when a creditor seeks to satisfy his Judg ment out of the equitable assets of the debtor, which could not be reached on execution, he must first exhaust his remedy at law, by the issue and return of an execution unsatisfied. IN Drury v. Young 58 Md. 546 it is held that a Memoraudum of sale under the stat ute of frauds is sufficiently "signed" by the name being printed on the sheet on which the memoraudum is written. In this case a memoraudum of the sale was written on a letter head, on which the name of seller was printed, and the written memorandum appeared below. Held that this was sufficient "signing" to bring it within the statute. IN C. C. C. R. R. Co. v. Walrath, 8 Cin. Also the State v. Nebraska Telephone Law Bulletin it is held that a party injured Co., Supreme court of Nebraska herefore in a sleeping car, by negligence of the refered to in this JOURNAL in which it is held employes, may maintain an action against that a Telephone Company is a common the Railroad Company for damages, in the carrier of news and must supply the public absence of notice by the Company that without discrimination. the sleeping car was owned and run by another Company AMERICAN LAW RECORD. THE AMERICAN LAW RECORD for March 1885 contains the case of C. M. & St. P. R.R. Company v. Ross, Supreme Court of the United States in which it is held that a railroad company is liable to a locomotive enginer for damages for injury received from the negligence of the conductor of the train; also the case of Button v. Hoffman STATES In the REGULATION OF COMMERCE CANNOT BY ACT OF LEGISLATURE. case of Reading R. R. Co., v. Pennsylvania it is held that an act of the state legislature imposing a tax upon freight carried by railroads within the state was a regulation of commerce and as such, was unconstitutional. In the case of Crandall v. State of Nevada NEW YORK COURT OF APPEALS. TRAIN it is held that a statute of the state imposing a tax of $1.00 on each passenger leaving the state by railroad or by coach or on each passenger traveling through the state is un- JURY. The plaintiff having purchased a constitunal and void. ticket and waiting on the platform of the Carpenter v. B. & A. Railroad (Danforth J.) Alb. Law Journal The legislature of New York in 1824 depot for the arrival of the train he wished passed an act imposing a penalty on the to board, was struck and injured by a mail commander or owner of any vessel arriving bag thrown from the car, for which injury at the port of New York who failed within a he brings this action for damages. Held specified time, to report to the Mayor of that he can mantain an action and that the the City a detailed statement of the number company are liable for negligence in such and the nationality of the passengers arriving case. by the said vessel. In the case of City of Co., New York v. Miln 11 Peters, 102 where April 4 1885. defendant resisted the imposition of this penalty on the grounds that such a statute was a regulation of commerse, it is held that such statute was a police regulation and within the power of the state. FEDERAL COURTS. PURCHASER. MORTGAGE SATISFACTION OF BONA FIDE Where the records show the existence of a mortgage on real estate to secure a negotiable instrument, not yet due, a purchaser of the land who makes In the case of Peoples Bank v. Legrand, payment of the debt to the mortgagee, withPa. Sup. Court, April 13, 1883 13 W.. N. C. out requiring the production of the mortit appeared that the bank held a note made gage, or other proper evidence of his by C. and indorsed by B. The note had authority to satisfy the record, is chargable gone to protest and the bank obtained with carlessness and makes the payment at Judgment against the maker of the same. his peril. The mortage is but an incident Subsequently the bank agreed with C. to extend the time of payment if he would pay ten per cent interest on the same and continue his banking business with them. In the course of business subsequently, C. had sufficient funds on diposit to have paid the note, but the bank did not apply the funds for that purpose. In an action against B. the indorser, it was held that the bank was not bound to apply the funds thus obtained and that the indorser was not thereby discharged. A like rule is mantained in the case of Martin v. Mechanics' Bank, 6 Harr. & Johns 235.; also in Foss v. Ger. Am. Bank, 83 Ill. 599. In the case of Nat. Bank of Newburgh v. Smith, 66 N. Y. 271 it is held that where a bank holds a note overdue and the maker deposits funds sufficient to cover the note without any instruction as to the application of the funds, it is optional with the bank whether it applies the funds to the payment of the note or not. of the debt, and partakes of its negotiability, and a party purchasing the land and seeking to remove the incumbrance must take care that he makes payment to the proper party. The purchaser, having no knowledge to the contrary, may rely upon the record as he finds it, although such record may be erroneuos or false; but a record made by his own act or procurement cannot be invoked in his behalf: otherwise he might profit by his own fraudulent or careless act,-- Windler v. Bonebrake et al.--(Foster J.)--March 13, 1885.-1, Kas. Law Journal 106. UNITED STATES SUPREME COURT. FEDERAL PROCEDURE - - EXAMINATION OF A PARTY BEFORE TRIAL. -The rule, established, that the rules of practice and pleading in the Federal Courts shall conform as near as may be to the practice in the State Courts of the State in which the Federal Court sits, is applicable only where there is no rule on the |