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The death of David Davis has removed one of the most original, forcible and independent of American characters. He was one of the peculiar products of our soil. Starting out a poor boy, he died a very rich man, by virtue of wise investments; born and reared in obscurity, he rose to a seat on the Supreme Court bench, and the temporary vice-presidency of the republic. He was a singular combination of personal frugality, business sagacity, broad common sense, large legal learning, shrewd humor, imperturbable good temper, perfect independence, and apparent absence of ambition. He graced the bench of our highest court by his wisdom and impartiality. He was one of the few men in public life who have uniformly been indifferent and superior to party considerations. When he was in the Senate, it was the fashion of the newspaper correspondents to laugh at his independence, and crack their unfailing joke about his always being "on the fence," as if it were not rather a virtue to keep himself in a position to take the better side or perhaps to take neither. It made no difference to the strong man, however; he always did just as he had a mind, and we believe he always did what he thought was right. He was one of the sort who think him

"A slave who dares not be

In the right with two or three,"

or all alone, for that matter. If he would have allowed politicians to coach him and use him, he might perhaps have risen to higher station, but he could not have been more worthy of honor. His

done that, we should have suspected a joke. On Sunday there was an appropriate sermon in the Temple Church-lighted with electricity! The occasion seems to have been too much for the staid Law Times, which has the following poetic rash worse than any of our own :

gave

The London lawyers have been celebrating the fiftieth anniversary of the Queen's accession. They a representation of "Midsummer Night's Dream" at Inner Temple Hall. Peter Quince forgot his proper phraseology for a moment, and when he should have said: "We will have such a prologue, and it shall be written in eight and six; "he rendered it "six and eight." If an "American" had

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faculties, attainments and characteristics made him an ideal judge, and we should have been glad if he had chosen to remain where his predominant trait of independence was a recommendation rather than enter upon a life where it subjected him to derision."

NOTES OF CASES.

N Schnell v. Blohm, 40 Hun, 378, an action of

a judgment previ

ously obtained by the plaintiff against the defendant for enticing the wife away was no bar. Dykeman, J., said: "The enticement of a man's wife from him, and from her home and child, is a wrong of sufficient magnitude, but a fresh sting is imparted to the injury when the seducer, in the face of the world, commences an adulterous intercourse. For

that new and increased wrong another action may be commenced, and another judgment recovered. 3 Bl. Com. 139. Even if the plaintiff's former recovery had been for the seduction and debauchery of his wife, he could still maintain this action; for every moment that the wife continues absent from her husband without justifiable cause, without his consent, is a new tort, and every one who persuades her to do so does a new injury, and cannot but know it." Hutcheson v. Peck, 5 Johns. 205. defendant injures the plaintiff anew every day he maintains the unlawful and adulterous intercourse with his wife, and so furnishes a fresh cause of action to the plaintiff with each recurring day.” Pratt, J., said: "The former recovery for alienat

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THE ALBANY LAW JOURNAL.

ing the wife's affections, though relevant and competent upon the question of damages, does not constitute a bar to the present action. Neither the judgment in the plaintiff's favor nor its satisfaction had any effect to diminish his marital rights. They continued, and on any infringement by defendant or others an action arose."

In Schneider v. Duncan, Q. B. Div., March, 1886, 54 L. T. Rep. (N. S.) 618, D. and his agents gave gratuitous refreshment to certain persons styled "workers" at a parliamentary election at which D. was a candidate. Held, that this was an illegal employment within the act, and rendered the election of D. void. Field, J., said: “The principal question here is concerned with the provision of refreshments, and I may say at once that I have had great difficulty in making up my mind whether it is not my duty to say that this comes within the definition of a corrupt practice. Under circumstances which have been laid before us at great length, there was a meeting called at the Central Hall, and a discussion took place between Mr. Duncan and his supporters, or some of his supporters, upon the question whether refreshments should or should not be provided to workers and other persons who might be ready to render assistance on the polling day. The result of the discussion was that the persons who left the hall on that day certainly left it under the impression and with the assurance that they would be provided with refreshments. It is said that Mr. Schneider was described as stingy and penurious, but what would the voters generally have said if, after the assurance which they received at the Central Hall, Mr. Duncan had not provided any refreshments? They would have said, in effect, that he was guilty of a breach of faith and a breach of contract. Now the essential meaning of a contract is in reality a very simple matter, and it is easy for a contract to be entered into without any definite stipulation in writing, or any express statement in words. Under the circumstances of the present case I am driven to the conclusion that there was on this occasion an employment of these men, and that it was employment for payment within the meaning of section 64, which provides that the expression 'payment shall include any pecuniary or other reward; and that the expressions pecuniary reward' and 'money' shall be taken to include any office, place or employment, and any valuable security or other equivalent for money and any valuable consideration. I am therefore compelled to come to the conclusion that it will be our duty to report to the speaker of the House of Commons that there have been illegal payments and illegal employments by the sitting member and his agents. It has been argued that the evidence shows that this practice was corrupt on the part of Mr. Duncan and his agent, but I am unable to come to that conclusion. There seems to have been no secrecy about the thing; it was done in a perfectly open manner,

an

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and Mr. Schneider's own canvassers went regularly into Mr. Duncan's committee-rooms in order to see what was being done. Now we must not impute crime to a man if his conduct is such that a less serious construction may reasonably and consistently be placed upon it, and for this reason I cannot, under the circumstances, come to the conclusion that the conduct of either Mr. Duncan or Mr. Garnett was corrupt in the sense understood by the statute."

In Packard v. Collings, Q. B. Div., March, 1886, 54 L. T. Rep. (N. S.) 619, it was held that to offer a voter his travelling expenses, with the intention of inducing him to come and vote for a certain candidate is bribery. The court said: "Mr. Waddy's contention was, that being a mere offer to pay travelling expenses, it was not now contrary to law. Now Garrard himself gives his own interpretation of it. He says he had an impression that payment of wages was illegal, but he had an opinion that the payment of travelling expenses was not illegal. But the case really will not turn upon what his notion may have been. If he made the promise in order to bring the voter, then it is held in many cases that this is fatal to the transaction. Now, in Cooper v. Slade, 6 H. L. Cas. 747, this matter was gone into in the House of Lords very fully. There an agent had written to an out-voter, asking him to come and vote for a candidate, and giving the name of the candidate, adding: 'Your railway expenses will be paid.' Great judicial doubt existed as to whether this could be construed to be a conditional offeran offer of the money provided he came - and the judges differed about it, until at last it came before the highest tribunal. That highest tribunal held that it was a conditional promise to pay the railway expenses if he came to vote for the candidate, and, therefore, they held that there had been bribery within section 2 of the act of 1854, and that it was in fact a bargain between the candidate and the voter. No one has suggested that if there was a promise only, there is no legal difference between that and an actual payment. This was a bargain similar to that on the other case, equivalent to saying to the outer-voter: 'If you will come and vote for me, I will give you money for paying the expense of your coming to vote.' It is said however by Mr. Waddy, that looking at the current of legislation this is not now bribery. He said everything in that view he possibly could; but in the very case cited by Mr. Waddy, the Coventry case, 20 L. T. Rep. (N. S.) 405; 1 O'M & H. 109, the enactments relating to the mere payment of expenses which are to be considered as altering the law laid down in Cooper v. Slade (ubi sup.), must have been of no effect. Willes, J., lays it down that illegal payment would void the election, so that the election will be void if a promise were made to a voter as an inducement to vote. The law upon this subject was very fully considered in the Horsham case, 3 O'M. & H. 54, by Quain, J. He gave a complete answer to Mr. Waddy's argument. In that case Quain, J.,

declared the election voided on account of bribery, and he stated the law as follows: Upon the subject of travelling expenses, it has been well known since Cooper v. Slade (ubi sup.), where the judges construed the letter as a promise to a voter, and putting that construction upon it, it was decided that that was a bribe. Every payment of expenses, though fair and reasonable to a voter, to induce him to vote, is bribery within the meaning of the act; therefore as a proposition of law, the offer to pay for the travelling expenses as a bribe admits, as Lord Wensleydale says, of no doubt whatever. Therefore the decision in Cooper v. Slade (ubi sup.), and what is more important for the present case, Willes, J.'s reference to the subsequent legislation which followed upon Cooper v. Slade (ubi sup.), remains untouched.' That being the law upon the matter that was followed again by a decision in the Bolton case, 31 L. T. Rep. (N. S.) 194; 2 O'M. &. H. 138. The Reform Act did not in the slightest degree alter the doctrine. It is clear the legislation has not altered the leading doctrine in Cooper v. Slade. Although paying travelling expenses is merely made an illegal act not in itself sufficient for voiding the election, yet if it is a promise under the condition that the voter should come up to vote, it becomes bribery within the meaning of the Corrupt Practices Act, section 2. That is a complete answer at once to every thing to be said on the subject, and disposes of the able argument by Mr. Waddy. That was a case decided in 1875, long after the act of 1868, and I cannot find any thing in subsequent legislation to alter the law as laid down. We must therefore hold that Garrard, an undoubted agent of the respondents, did an act which comes within the definition of bribery, and that compels us to hold that the election of the respondents is void."

In Butler v. Butler, Ct. of App., Dec., 1885, 54 L. T. Rep. (N. S.) 591, it was held that a husband can maintain an action against his wife, and can charge her separate estate for money lent by him to her after their marriage, and for money paid by him for her after their marriage, at her request, made before or after their marriage. Lord Esher, M. R., said: "It is suggested that he cannot, and for this

reason that husband and wife cannot contract together, so as to enable the husband to sue his wife upon her contract. Now it is clear that at common law no such action could be maintained; the common law did not recognize the possibility of any such contract, always holding husband and wife incapable of contracting together. But on looking into the equity cases, it will be found that though the courts of equity took in general the same view upon this point as the courts of common law, yet they made an exception in those cases where the wife was possessed of separate estate. I think there is no one case precisely in point, but yet it seems to have been again and again stated as the recognized rule of courts of equity that a wife, having separate estate, was to be treated in all respects as

a feme sole, both with regard to the outside world and between herself and her husband. If that was the recognized rule, it would of course follow from that that her husband would be liable to her in respect of any promise made by him to her with regard to her separate estate, and she would be answerable to him in respect of her separate estate for the consideration to support his promise. Now the case in which it was most clearly recognized that a husband may make his wife a defendant in an action respecting her separate estate was the case of Earl v. Ferris, 19 Beav. 67. Passage after passage in that and other cases may be read which contain clear statements that it is the recognized rule of courts of equity that as to her separate estate, a wife is to be treated as a feme sole between herself and her husband. This Court of Appeal is a court of equity as well as of law, and can enforce the same remedies that the Court of Chancery formerly could. If the rule was, as I have stated it, before the passing of the act of 1882, it is clear that the statute has not interfered with it nor taken away from a husband any of the rights and remedies which he had against the separate estate of his wife before the passing of the act. I understand, from his judgment, that Wills, J., decided the case on the very same grounds as those on which I am now deciding it, and I think that his judgment is correct. I referred during the arguments to a passage in Daniell's Chancery Practice, which is a text-book of great accuracy, and which states the rule to be that to which I have referred, and I think the cases of Wake v. Parker, 2 Keen, 59; Davis v. Prout, 7 Beav. 288, and Brooke v. Brooke, 27 L. J. 639, Ch., assume that a husband may in equity sue his wife in respect of her separate estate.' Cotton, L. J., said; "As regards her separate estate, a married woman could contract with the world at large, or with her husband, if not restrained; that was the old equity doctrine which was always acted on for years before the passing of this act of Parliament, and it is not for a moment contended that the act

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places any restrictions upon that doctrine; but really it is not material to consider the act of Parliament, because this action is really quite independent of the act, and is such an action as it was perfectly competent for a husband to bring before the passing of the Married Women's Property Acts at all."

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THE ALBANY LAW JOURNAL.

Frederic R. Coudert and Edward K. Jones, for complainants.

James C. Custer and Lewis C. Ledyard, for defendants.

WALLACE, J. The complainants have filed a bill in each of these causes to restrain the defendants from making discriminations for transportation against the complainants, which consist in charging them a higher rate of freight than is charged by defendants to other shippers of merchandise generally. A motion is now made for a preliminary injunction. The facts in each case are essentially the same, and both cases may be considered together.

The complainants are merchants domiciled in the city of New York, and engaged in commerce between that port and the island of Cuba. The defendants are proprietors or managers of steam-ship lines plying between New York and Cuba. Formerly the business of transportation between the two places was carried on by sailing vessels. In 1877 the line of steam-ships known as "Ward's Line" was established, and in 1881 was incorporated by the name of the New York & Cuba Mail Steam-ship Line under the general laws of the State of New York. At the time of the incorporation of this company the line of steam-ships owned by the defendants Alexandre & Sons had also been established. These two lines were competitors between New York and Cuba, but for several years both lines have been operated under a traffic agreement between themselves, by which uniform rates are charged by each to the public for transportation. The two lines are the only lines engaged in the business of regular transportation between New Cork and Cuba; and unless merchants choose to avail themselves of the facilities offered by them, they are obliged to ship their merchandise by vessels or steamers which may casually ply between the two places.

It is alleged by the complainant that the defendants have announced generally to New York merchants engaged in Cuban trade that they must not patronize steam-ships which offer for a single voyage, and on various occasions when other steam-ships have attempted to procure cargoes from New York to Havanna have notified shippers that those employing such steam-ships would thereafter be subjected to onerous discriminations by the defendants. The defendants allege in their answer to the bill in effect, that it has been found necessary, for the purpose of securing sufficient patronage, to make differences in rates of freight between shippers in favor of those who will agree to patronize the defendants exclusively. Within a few months before the commencement of this suit two foreign steamers were sent to New York to take cargoes to Havanna, and the complainants were requested to act as agents. Thereupon the complainants were notified by the defendants that they would be "placed upon the black-list" if they shipped goods by these steamers, and that their rates of freight would thereafter be advanced on all goods which they might have occasion to send by the defendants. Since that time the defendants have habitually charged the complainants greater rates of freight than those merchants who shipped exclusively by the defendants. The freight charges, by the course of business, are paid by consignees at the Cuban ports. The complainants have attempted to pay the freight in advance, but have found this course impracticable because their consignees are precluded from deducting damages or deficiencies upon the arrival of the goods from the charges for freight, and as a result some of the complainants' correspondents in Cuba refuse to continue business relations with them, being unwilling to submit to the annoyance of readjusting over-charges with complainants. Upon this state of facts the complain

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ants have founded the allegation of their bill that the defendants "have arbitrarily refused them equal terms, facilities, and accommodations to those granted and allowed by the defendants to other shippers, and have arbitrarily exacted from them a much greater rate of freight than the defendants have at the same time charged to shippers of merchandise generally as a condition of receiving and transporting merchandise." They apply for an injunction upon the theory that their grievances cannot be redressed by an action at law.

It is contended for the complainants that a common carrier owes an equal duty to every member of the community, and is not permitted to make unequal preferences in favor of one person or class of persons, as against another person or class. The defendants insist that it is permitted to common carriers to make reasonable discriminations in the rates demanded from the public; that they are not required to carry for all at the same rates; that discriminations are reasonable which are based upon the quantity of goods seut by different shippers; and that the discrimination in the present case is essentially such a discrimination, and has no element of personal preference, and is necessary for the protection of the defendants.

Unquestionably a common carrier is always entitled to a reasonable compensation for his services. Hence it follows that he is not required to treat all those who patronize him with absolute equality. It is his privilege to charge less than fair compensation to one person, or to a class of persons, and others cannot justly complain so long as he carries on reasonable terms for them. Respecting ¡preferences in rates of compensation, his obligation is to charge no more than a fair return in each particular transaction, and except as thus restricted he is free to discriminate at pleasure. This is the equal justice to all which the law exacts from the common carrier in his relations with the public. Baxendale v. Eastern Counties R. Co., 4 C. B. (N. S.) 78; Branley v. Southeastern R. Co., 12 id. 74; Fitchburg R. Co. v. Gage, 12 Gray, 393; Sargent v. Boston & L. R. Corp., 115 Mass. 416, 422.

It is in this sense that the observations found in some of the authorities are to be understood. So understood, the language of the opinion in Messenger v. Penn. R. Co., 37 N. J. Law, 531, is apposite: "The business of the common carrier is for the public, and it is his duty to serve the public indifferently. In the very nature, then of his duty, and of the public right, his conduct should be equal and just to all. * ** A common carrier owes an equal duty to all, and it cannot be discharged if he is allowed to make unequal preferences, and thereby prevent or impair the enjoyment of the common right."

In the same sense the remarks of the court in McDuffee v. Portland & R. R. Co., 52 N. H. 430; S. C., 13 Am. Rep. 72, are approved and adopted as pertinent to the case in hand. The court says: "And as all common carriers combined cannot, directly or indirectly, destroy or interrupt the common right by stopping their branch of the public service while they remain in that service, so neither all of them together, nor one alone, can directly or indirectly deprive any individual of his lawful enjoyment of the common right. Equality, in the sense of freedom from unreasonable discrimination, being of the very substance of the common right, an individual is deprived of his lawful enjoyment of the common right when he is subjected to unreasonable and injurious discrimination in respect to terms, facilities, or accommodations. * * * A denial of the entire right of service by a refusal to carry differs, if at all, in degrees only, and in the amount of damage done, and not in the essential character of the act, from a denial of the right in part by an unreasonable discrimination in terms, fa

cilities, or accommodations. Whether the denial is general by refusing to furnish any transportation whatever, or special. by refusing to carry for one person or his goods; whether it is direct, by expressly refusing to carry, or indirect, by imposing such unreasonable terms, facilities, or accommodation as render carriage undesirable; whether unreasonableness of terms, facilities, or accommodations operates as a total or a partial denial of the right; and whether the unreasonableness is in the intrinsic individual nature of the terms, facilities, or accommodations, or in their discriminating, collective, and comparative character, the right denied is one and the same common right which would not be a right if it could be rightfully denied, and would not be common in the legal sense if it could be legally subjected to unreasonable discrimination and parceled out among them in unreasonable, superior, and inferior grades, at the behest of the servant from whom the service is due."

In the present case the question whether the defendants refuse to carry for the complainants at a reasonable compensation resolves itself into another form. Can the defendants lawfully require the complainants to pay more for carrying the same kind of merchandise, under like conditions, to the same places, then they charge to others, because the complainants refuse to patronize the defendants exclusively, while other shippers do not? The fact that the carrier charges some less than others for the same service is merely evidence for the latter, tending to show that he charges them too much; but when it appears that the charges are greater than those ordinarily and uniformly made to others for similiar services, the fact is not only competent evidence against the carrier, but cogent evidence, and shifts upon him the burden of justifying the exceptional charge. The estimate placed by a party upon the value of his own services or property is always sufficient, against him, to establish the real value; but it has augmented probative force, and is almost conclusive against him, when he has adopted it in a long-continued and extensive course of business dealings, and held it out as a fixed and notorious standard for the information of the public.

The defendants assume to justify upon the theory that a carrier may regulate his charges upon the basis of the quantity of goods delivered to him for transportation by different shippers, and that their discrimination against the plaintiff is in substance one made with reference to the quantity of merchandise furnished by them for carriage. Courts of law have always recognized the rights of carriers to regulate their charges with reference to the quantity of merchandise carried for the shipper, either at a given shipment, or during a given period of time, although public sentiment in many communities has objected to such discriminations, and crystallized into legislative condemnation of the practice. By the English statutes (17 & 18 Vict., ch. 31) railway and canal carriers are prohibited from "giving any undue or unreasonable preference or advantage to or in favor of any particular description of traffic, in any respect whatever," in the receiving, forwarding, and delivery of traffic; but under these provisions of positive law the courts have held that it is not an undue preference to give lower rates for larger quantities of freight. Ransom v. Eastern C. R. Co.. 1 Nev. & McN. 63, 155; Nicholson v. Great Western Ry. Co., id. 121; Strick v. Swansea Canal Co., 16 C. B. (N. S.) 235; Greenop v. S. E. R. Co., 2 Nev. & McN. 319.

These decisions proceed upon the ground that the carrier is entitled to take into consideration the question of his own profits and interests in determining what charges are reasonable. He may be able to car

ry a large quantity of goods, under some circumstances, at no greater expense than would be required to carry a smaller quantity. His fair compensation for carrying the smaller quantity might not be correctly measured by the rate per pound, per bushel, or per mile charged for the larger. If he is assured of regular shipments at given times, he may be able to make more economical arrangements for transportation. By extending special inducements to the public for patronage he may be able to increase his business, without a corresponding increase of capital or expense in transacting it, and thus derive a larger profit. He is therefore justified in making discriminations by a scale of rates having reference to a standard of fair remuneration of all who patronize him. But it is impossible to maintain that any analogy exists between a discrimination based upon the quantity of business furnished by different classes of shippers, and one which altogether ignores this consideration, and has no relation to the profits or compensation which the carrier ought to derive for a given quantum of service.

The proposition is speciously put that the carrier may reasonably discriminate between two classes of shippers, the regular and the casual; and that such is the only discrimination here. Undoubtedly the carrier may adopt a commutative system, whereby those who furnish him a regular traffic may obtain reduced rates, just as he may properly regulate his charges upon the basis of the quantity of traffic which he receives from different classes of shippers. But this is not the proposition to be discussed. The defendants assume to discriminate against the complainants, not because they do not furnish them a regular business, or a given number of shipments, or a certain quantity of merchandise to carry, but because they refuse to patronize the defendants exclusively. The question is whether the defendants refuse to carry for the complainants on reasonable terms. The defendants, to maintain the affirmative, assert that their charges are fair because they do not have the whole of the complainants' carrying business. But it can never be material to consider whether the carrier is. permitted to enjoy a monopoly of the transportation for a particular individual, or class of individuals, in ascertaining what is reasonable compensation for the services actually rendered to him or them. Such a consideration might be influential in inducing parties to contract in advance; but it has no legitimate bearing upon the value of services rendered without a special contract, or which are rendered because the law requires them to be rendered for a fair remuneration.

A common carrier "is in the exercise of a sort of public office, and has public duties to perform, from which he should not be permitted to exonerate himself." Nelson, J., in New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344. His obligations and liabilities are not dependent upon contract, though they may be modified and limited by contract. They are imposed by the law, from the public nature of his employment. Hannibal R. v. Swift, 12 Wall. 262. As their business is "affected with a public interest," it is subject to legislative regulation. "In matters which do affect the public interest, and as to which legislative control may be exercised, if there are no statutory regulations upon the subject, the courts must determine what is reasonable." Waite, C. J., in Munn v. Illinois, 94 U. S. 113, 134. It is upon this foundation, and not alone because the business of common carriers is so largely controlled by corporations exercising under franchises the privileges which are held in trust for the public benefit, that the courts have so strenuously resisted their attempts, by special contracts or unfair preferences, to discriminate be

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