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had been, the return would go in mitigation of dam- liable for mistakes or delays in the transmission or deages upon the same principle as in trover. Judgment on the verdict.

livery, or for non-delivery of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same; nor for mistakes or delays in the transmission or delivery, or for non-delivery of any repeated message, beyond fifty times the sum received for send. ing the same, unless specially insured; nor in any case for delays arising from unavoidable interruptions in in the working of its lines, or for errors in cipher or obscure messages."


SEPTEMBER 18, 1884.

HART V. WESTERN UNION TELEGRAPH CO.* A stipulation purporting to exempt a telegraph corporation from all liability for mistakes or delays in the transmission or delivery, or for non-delivery, of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same, is void for want of consideration to support it. It is not competent for telegraph companies to stipulate against or limit their liability for mistakes happening in consequence of their own fault; such as want of proper skill or ordinary care on the part of their operators, or the use of defective instruments. They are exempt only for errors arising from causes beyond their control; and whether such error was caused by negligence, or was beyond their control, is a question for the jury, the presumption being that it occurred through negligence. EPARTMENT 1. Appeal from the Superior Court of San Joaquin county.


W. H. L. Barnes, for appellant.
Byers & Elliot, for respondent.


Ross, J. On the 15th day of December, 1882, the plaintiff delivered to the defendant, at its Stockton office, this message: "George W. McNear, San Francisco: Buy bail barley falun; report by mail. George Hart." The message was promptly transmitted and delivered as written, except that the word "bail" was changed to the word "bain." By the private cipher code of McNear, used by the plaintiff in the message, the word bail" means one hundred tons," and the word "bain" means "two hundred and twenty-five tons." As the message was delivered, it directed McNear to buy for the account of the plaintiff 225 tons of barley, whereas, as it was written by the plaintiff, McNear was directed to buy on plaintiff's account 100 tous only. Acting on the message received, McNear bought for plaintiff 200 tons of barley. When the plaintiff discovered that fact he notified the defendant that 100 tons had been bought in excess of that directed to be bought by the original message, and asked the defendaut what he should do with the surplus so purchased? Defendant refused to give any instruction in regard to it. Plaintiff thereupon sold the barley at the highest market rate, his loss on the extra 100 tons being $429.82. It is for the loss thus sustained by him that the action is brought.

At the trial the only proof given by the plaintiff to show negligence on the part of the defendant was the admitted fact that the message was delivered in its altered form. It was also admitted that the message was written by the plaintiff upon a printed form prepared by the defendant, underneath the words, "send the following message, subject to the above terms, which are hereby agreed to; " and that among the "above terms" referred to are the following:


To guard against mistakes or delays the sender of a message should order it repeated; that is, telegraph back to the originating office for comparison. For this, one-half the regular rate is charged in addition. It is agreed between the sender of the following message and this company that said company shall not be *S. C., 4 Pac. Rep. 657.

That the message in question was not "repeated" is conceded by the plaintiff. It further appears in the case that no explanation of the meaning of the dis patch was made by the plaintiff at the time he deliv ered it to the defendant, for which reason, and because, as is claimed, the message under consideration was in cipher, appellant contends that the measure of damages is the price paid for the transmission of the telegram in this case, thirty cents. In support of this point it is said by counsel that "the decisions of all the courts uniformly declare that unless the importance of the message is shown, either by its own terms or by explanation made to the person receiving it in behalf of the telegraph company, no damages are recoverable for failure or delay in transmission beyond the price paid for that purpose." In this appellant's counsel is mistaken. The cases cited by him undoubtedly sustain the point he makes, and there are other cases to the same effect. Some of those decisions were based on messages which were in cipher; and others, messages, which though not in cipher, did not themselves disclose the extent or import of any transaction had in contemplation by the parties. In those cases substantial damages were refused because neither the messages or other information given made known to the operator what was contemplated. Hence it was ruled that plaintiff could not recover of the telegraph company what, not understanding, it could not have contemplated as the effect of a miscarriage or other failure.

While not doubting the general rule that damages must be such as may be fairly supposed to have entered into the contemplation of the parties when they made the contract, that is, such as might be naturally expected to follow its violation, we do question, and think not sound, the application of that rule as made in the class of cases to which allusion is above made. Telegraph companies have conferred upon them by law certain privileges, among them the right of eminent domain, and they are charged with certain duties; among them, the obligation to send promptly and correctly such messages as are intrusted to them. Of course, if illegibly written, the operator may reject a message; but if plainly written his duty is to send it as written. Why has he the right to know what the message refers to? In what way would such knowledge aid him in the discharge of his duty to send it correctly? "One of the great attractions," say Scott and Jarnagin, in their treatise on the Law of Telegraphs, § 404: "which this mode of communication presents, is the brevity of the dispatch, such abbreviations being used in many cases as will enable the person for whom it is intended alone to understand it, and hence the vast amount of business the telegraph operator is capable of transacting in the transmission and delivery of messages. So that an explanation of the meaning, importance, and bearing of each message would be an insufferable annoyance, and in the mul tiplicity of messages delivered for transmission, could not be remembered, even if the time could be spared to listen to it, and it would rarely afford any benefit or advantage to the company after the information was communicated." Proceeding, these writers say, and say correctly, that though the company, through

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its agents, may not know the meaning of the particular message, they do know that messages of great value and importance, involving heavy losses in case of failure or delay, or mistake in their transmission, are constantly sent over their wires; and they do know that they hold themselves out to the public as prepared at all times, and for all persons to transmit messages of this description. And the rule of damages as applied to telegraph companies is there deduced, which we think the true rule, namely, that although the message be unintelligible to the company, yet as its undertaking was to transmit the message promptly and correctly, both parties contemplated that whatever loss should naturally, and in the usual course of things, follow a violation of that obligation, the company should be responsible for. The same conclusion was reached by the Supreme Court of Alabama in the case entitled Doughtry v. Amer. U. Tel. Co., decided in December, 1883, a note of which will be found at p. 731, 46 Am. Rep., and by the Court of Appeals of Virginia in the case of W. U. Tel. Co. v. Reynolds, 77 Va. 173; see also Rittenhouse v. Independent Line of Tel., 1 Daly, 474.

It is also contended on behalf of the defendant corporation, that as the message in question was not "repeated," defendant is not responsible, under any circumstances., beyond the amount received for its transmission; and this because it is so declared in the conditions printed at the head of the form upon which the dispatch was written, and to which as is claimed the plaintiff assented. There are numerous cases tha hold that such a rule on the part of the company is reasonable. valid, and binding on the sender of the message. The cases that so hold are too numerous to be here referred to in detail. They will be found collated in a note to the case of W. U. Tel. Co. v. Blanchard, 45 Am. Rep. 486. But there are many cases to the contrary, and the latter class we think based on the better reason. In the first place we agree with the Supreme Court of Illinois in the case of Tyler v. W. U. Tel. Co., 60 Ill. 421; and S. C., 74 id. 170, where it is held that the regulation requiring messages to be repeated is not a contract binding in law, for the reason that the law imposed upon the company duties to be performed, for the performance of which it was entitled to a compensation fixed by itself, and which the sender had no choice but to pay; that among those duties was that of transmitting messages correctly; that the tariff paid was the consideration for the performance of this duty in each particular case, and when the charges were paid the duty of the company began, and there was therefore no consideration for the supposed contract requiring the sender to repeat the message at an additional cost of 50 per cent of the original charge. To the same effect is Bartlett v. W. U. Tel. Co., 62 Me. 218, and Candee v. W. U. Tel. Co., 34 Wis. 477, where the court say:

"Aside from the objections resting on grounds of public policy, and which forbid the company from stipulating for immunity from the consequences of its own wrongful acts, it seems very clear to us that there can be no consideration for such stipulation on the part of the sender of the message, and that so far as he is concerned, it is void for that reason, although exacted by the company and fully assented to by him. Either the company enters into a contract with him, and takes upon itself the burden of some sort of legal obligation to send the message, or it does not. It would be manifestly against reason, and what all must assume to be the intention of the parties, to say that no contract whatever is made between them, and nobody, not even the officers or representatives of the company, asserts such a doctrine. It would seem utterly absurd to assert it. Holding itself out as ready

and willing and able to perform the service for whosoever comes 'and pays the consideration itself had fixed and declared to be sufficient, and actually receiving such consideration, it cannot be denied, we think, that a legal obligation arises, and duty exists on the part of the company to transmit the message with reasonable care and diligence, according to the request of the sender. Such being the attitude of the company, and the obligation which it assumes by accepting the payment, the question arising is whether it can at the same time, and as a part of the very act of creating the obligation, exact and receive from the other party to the contract a release from it? The regulations under consideration, if looked upon as reasonable and valid, completely nullify the contract by absolving the company from all obligation to perform it, and the party delivering the message gets nothing in return for the price of transmission paid by him. Is it possible for the company, or for any other party entering into a contract for a valuable consideration received, to promise and not to promise, or to create and not to create, an obligation or duty at one and the same moment and by one and the same act? The inconsistency and impossibility of such things are obvious. But if there were no such difficulties, or if the occasion or circumstances were such that a valid release might be executed, and it be regarded in that light, still the objection exists, that there is no consideration whatever to support it. and it must be held void on that ground. If it be urged that the sender receives his consideration in the reduced price of transmission, or because the company, undertakes to send the message at one-half the usual rates of transmitting day messages, that argument ends in proving that the company does not undertake to send the message at all, and that no contract or agreement on its part is made or entered into for that purpose. If the company promises or binds itself at all for the rate or consideration named, and which it is willing to and does accept, then the smallness of of such consideration cannot operate to relieve from the promise or to destroy the obligation thus created. Regarding the regulations in this light therefore, as well as in that of correct public policy, it is seen that erfect cannot be given to them as a means of protec tion or escape on the part of the company from all liability for the performance of its contract. The regulations cannot serve to shield the company from the consequences resulting from the gross negligence or fraud of its afficers or agents, or from their entire failure to perform the service, no good excuse for such failure being offered or shown."

We therefore hold that the stipulation purporting to exempt the corporation defendant from all liability for mistakes or delays in the transmission or delivery, or for non-delivery of any unrepeated message, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same, is void for want of a consideration to support it. And further, that it is not competent for telegraph companies to stipulate against or limit their liability for mistakes happening in consequence of their own fault, such as want of proper skill or ordinary care on the part of their operators, or the use of defective instruments. See authorities above cited, and Sweatland v. Ill. & Miss. Tel Co., 27 Iowa, 433; Wolf v. Western U. Tel. Co., 62 Penn. St. 83; Breese v. U. S. Tel. Co., 48 N. Y. 132; U. S. Tel. Co. v. Gildersleeve, 29 Md. 232; IV. U. Tel. Co. v. Buchanan, 35 Ind. 429; Hibbard v. W. U. Tel. Co., 33 Wis. 558; Tel. Co. v. Griswold, 37 Ohio St. 301. We think the true rule is that such companies are exempt only for errors arising from causes beyond their own control. And this would seem to be the rule adopted by statute in this State; for by sec

"A carrier

tion 2162 of the Civil Code it is declared:
of messages for reward must use great care and dili-
gence in the transmission and delivery of messa-
ges. A carrier by telegraph must use the utmost dili-
gence therein."

We are further of opinion, that the plaintiff having proved the mistake in the message as delivered, the onus was upon the defendant to show how it occurred. Tyler v. W. U. Tel. Co., supra. If the error was caused by atmospheric disturbances, or a momentary displacement of the wires, the defendant knew it, and ought to show it. This defendant undertook to do on the trial in the court below. There was testimony given tending to show that before and at the time the message in question was sent, trouble was experienced in the transmission of dispatches, owing to the condition of the weather; that it was foggy and stormy. It was further made to appear that in the telegraphic code the following lines and dots, when transmitted along the wire made the word "bail:"

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There was also testimony tending to show that the operators at Stockton and San Francisco were competent, and that the one at San Francisco was especially careful in the matter of this dispatch. The latter testified that she took particular pains with the message in question, "as is shown by the mark under one of the cipher words-the last word-because it was an unusual word falun.' I asked Mr. Dixon to repeat it, and I put a little mark,+,' under it to show that it was repeated. The other words, being ordinary words, I paid no attention to, because it is something very likely to be received in any message." There was also given on behalf of the defendant further testimony tending to show that the error rebain "" sulting in the change of the word "bail" to " was caused by a break in the electric current, and that this in turn was caused by atmospheric influences prevailing at the time, and of course, beyond the control of defendant. If such was the fact, the verdict should have been for the defendant. But it was a question of fact for the jury, under appropriate instructions from the court. The court should have to'd the jury that the mistake in the message as delivered, being admitted, the presumption was that it occurred through the negligence of defendant; but that if they believed from the evidence that the mistake occurred through a cause or causes beyond defendant's control, such as a break in the electric current, produced by atmospheric influences, their verdict should be for the defendant. We think this ques- [Decided June 3, 1884. tion, which was the turning one in the case, was not fairly submitted to the jury in the court below, and we must therefore remand the cause for a new trial.


ment. S. B.& N.Y.R. Co. v. Collins, 57 N.Y.641; S. C., 1 Abb. N. C. 47; Brennan v. Wilson, 71 N. Y. 502. Such an assignment however does not take effect to pass title to personal property situate in another State in contravention of the laws of that State. The general rule that a voluntary transfer of personal property is to be governed by the laws of the owner's domicile is not of universal application, but yields when the law and policy of the State where the property is located have prescribed a different rule of transfer from that of the State where the owner lives. People v. Commissioners of Taxes, 23 N. Y. 225; People v. Smith, 88 id. 576; Guillauder v. Howell, 35 id. 657; Ockerman v. Cross, 54 id. 29; Edgerly' v. Bush, 81 id. 199; Hibernia Nat. Bank v. Lacombe, 84 id. 367; Green v. Van Buskirk, 7 Wall. 139; Hervey v. R. I. Locomotive Works, 93 U. S. 664. On March 1,1881, W., a resident of this State, made a general assignment for the benefit of creditors to plaintiff; at that time W owned personal property situate in two counties in Pennsylvania. The assignment was recorded in one of those counties on the 18th and in the other on the 19th of March. On the day of the execution of the assignmeut, but after its delivery, defendants, creditors of W., and residents in this State, without actual notice of the assignment, commenced actions against the assignor in Pennsylvania, and by virtue of attachments issued therein, the property situate in that State was levied upon at the time the assignment was made; a statute in Pennsylvania regulating such assignment provided that an assignment of property situate in that State made by a person not a resident therein may be recorded in any county where the property is situated, and shall take effect from its date, "provided that no bona fide purchaser, mortgagor or creditor, having a lien thereon before the recording in the same county, and not having previous actual notice, shall be affected or prejudiced." In an action to restrain defendants from further proceedings under the attachment, held, that the defendant, on having acquired valid liens on the property in Pennsylvania prior to the recording of the assignment in that State, those liens were saved from the operation of the assignment; that the laws of this State did not follow defendants into Pennsylvania, and they had the same right to enforce payment of their claim out of their debtor's property found there as a resident creditor had; that they could not be treated as tort feasors here, for acts lawful where they were committed, and that the action was not maintainable. Ockerman v. Cross, 54 N. Y. 29; Bagley v. A. M. & C. R. Co., 84 Penn. St. 291, distinguished. Warner v. Joffrey. Opinion by Earl,

TRIAL EXAMINATION OF WITNESS-PRIVILEGED COMMUNICATION-PRACTICE.-(1) A party is not bound to interrupt the examination of a witness called by his

Judgment and order reversed, and cause remanded adversary in respect to a material matter, on a mere for a new trial.

McKinstry and McKee, JJ., concur.

suspicion that the witness may be debarred by his position from testifying; he may await the cross-exami nation to bring out the facts, and if it appears thereby that the witness is incompetent, make his motion to have the testimony struck out. Where therefore in an action upon a promissory note, wherein the question was as to the consideration for the transfer by the person to whom it was executed, the latter was called as a witness for the defendants to prove the nature of the transfer, and after an attorney called as a witness by plaintiff had testified to declarations made by the transferee, tending to sustain plaintiff's claim, it appeared upon cross-examination that said witness was acting as counsel for the transferee at the time such declarations were made, and that they were made to him as such; whereupon defendants moved to strike


CONFLICT OF LAWS ASSIGNMENT FOR BENEFIT OF CREDITORS—TITLE TO PERSONAL PROPERTY- A general assignment for the benefit of creditors, executed as prescribed by the General Assignment Act (ch.466, L. 1877, as amended by ch.318, L. 1878), takes effect so far as property situate in this State is concerned, from the time of its delivery; all requirements subsequent to the delivery are directory merely and an omission to obey any of them does not avoid the assign

out the testimony on the ground that the declarations were privileged communications, which motion was denied. Held, error; and this, although the testimony of the witness on direct examination, while it did not disclose the fact, might have suggested a quære as to the existence of the relationship of counsel and client. But it would be too strict to hold that a party is bound to interrupt the examination of a witness in respect to a material matter on a mere suspicion that the witness may be debarred by his position from testifying. He may, we think, await his opportunity on cross-examination, to bring out the facts, and if on such examination it appears that the witness is incompetent, make his motion to have the testimony expunged from the record. Hinckley v. N. Y. C. & H. R. R. Co., 56 N. Y. 429. (2) It is clear that the witness was debarred from testifying to the declaration of Hill by the rule which forbids an attorney from disclosing communications made to him by a client in the course of his professional employment. Bacon v. Frisbie, 80 N. Y. 394; Root v. Wright, 84 id, 72. Lovendy v. Hill. Opinion per Curiam.

[Decided June 3, 1884.]

EMINENT DOMAIN-FEDERAL GOVERNMENT-COMING INTO STATE COURT.-While the Federal government, as an independent sovereignty, has the power of condemning land within the States for its own public use (Cooley Const. Law [5th ed.], 525; Kohl v. United States, 91 U. S. 367), we see no reason to doubt that it may lay aside its sovereignty, and as a petitioner enter the State courts and there accomplish the same end through proceedings authorized by the State Legislature. If the State may delegate its power to a private corporation of another State, for the benefit of a canal located within its borders, as was held by this court in the Matter of Peter Townsend, 39 N. Y. 171, so it may to an independent political corporation where the use is public and the convenience shared by its own citizens. Gilmer v. Lime Point, 18 Cal. 229; Burt v. Merchants' Ins. Co., 106 Mass. 356. While private property cannot be taken for public purposes without just compensation, this need not be given in all cases concurrently in point of time with the actual exercise of the right of eminent domain. It is enough if an adequate and certain remedy is provided whereby the owner of such property may compel payment of his damages. Bloodgood v. M. & H. R. Co., 18 Wend. 9; Lyon v. Jerome, 26 id. 485; People v. Hayden, 6 Hill, 359; Rexford v. Knight, 11 N. Y. 308. This means reasonable legal certainty. Chapman v. Yates, 54 N. Y. 146; Sage v. City of Brooklyn, 89 id. 189. Accordingly held, that as before any land had been taken under the act entitled "An act granting to the United States the right to acquire the right of way necessary for the improvement of the Harlem river and Spuyten Duyvil creek for the construction of another chaunel from the north river to the East river through the Harlem Kills, and ceding jurisdiction over the same (ch. 147, L. 1876), as by the various amendments to said act (ch. 345, L. 1879; ch. 65, L. 1880; ch. 61, L. 1881; chs. 377, 410, L. 1882; ch. 214, L. 1883) certain and suitable provision is made to compensate the owners for lands taken, the defect in the original act in this respect was no objection to proceedings instituted under it. Also, held, that the said act was not violative of the provision of the State Constitution, article 3, section 16, providing that "no private or local bill * *shall embrace more than one subject, and that shall be expressed in the title." Matter of United States. Opinion by Danforth, J. [Decided June 3, 1884.]



CONTRACT-SUPPORT-IMPLIED TICE-CODE, § 1207.-In 1873 the parties entered into an agreement by which, in consideration of plaintiff's

obtaining a satisfaction-piece from S. of a certain mortgage of $2,000, the defendant M. agreed to assign to defendant W. a mortgage of $5,000, to be held by him in trust for the payment to plaintiff of $200 per annum, payable semi-annually during the life-time of S. "for his support and maintenance." Plaintiff, in consideration thereof, covenanted to support and maintain S. "as long as said $200 is paid annually as aforesaid." The satisfaction was procured, assignment executed, and defendants made semi-annual payments up to April 15, 1875. Plaintiff thereafter was ready and willing to receive S. into his house and support him there; this S. refused. In an action to recover subsequent installments, held, that the contract must be construed as subject to the implied condition of an assent on the part of S. to receive his support at the hands of plaintiff; that such support was a condition precedent to any obligation to pay, and not having been performed, plaintiff was not entitled to recover. The learned counsel for the respondent insists that to do so was the full measure of his duty, and in aid of his position cites Pool v. Pool, 1 Hill, 580; McKillup v. McKillup, 8 Barb 552; Hawley v. Norton, 23 id. 225; Loomis v. Loomis, 35 id. 624; In Pool v. Pool the plaintiff, an aged man, had conveyed to the defendants his house and other property upon their covenanting to keep and sustain him in boarding and lodging, etc., and suitable attendance, and also to "keep and maintain his infant children in a manner suitable for him to provide for them had he not conveyed away his property." One of the children left before he was twenty-one years of age, and the father sued the defendants because they did not keep and maintain the child, and it was held they were only bound to provide for the child as a member of their family. McKillup v. McKillup presented substantially the same circumstances. A bond to "furnish good and sufficient nursing, medical attendance, washing and lodging" to the father and his insance child, in consideration of the conveyance of real estate. The action was by one who harbored and cared for the father and his child. In Hawley v. Martin the bond expressly provided for the keeping and support of the plaintiff in the house of the defendant; and in all these cases the court decided as in Pool v. Pool, while in Loomis v. Loomis, supra, a different doctrine was applied to the agreement then before the court, and in an action by the beneficiary against the executor of the covenantor it was held that under an agreement for a good and sufficient maintenance, she might choose her residence. It is unnecessary to inquire to what extent these cases are to be followed, for they do not apply to any issue between these parties. Their facts are unlike those before us. Here the beneficiary was not a party to the agreement, nor are there any findings showing that he knew of, or assented to it. Whether he could sue for the non-performance of any duty under its provisions is a question which, although raised by the respondent's counsel, has no bearing upon the present controversy, and need not be considered. It is enough to say that as he left the plaintiff's house of his own volition, if the cases cited have any application, they would, upon the plaintiff's construction of the agreement, furnish ample protection to him in case S. should sue for the cost of support and maintenance during his voluntary absence. The plaintiff's case comes within the principle which relieves a master from liability for not teaching an apprentice who refuses to be taught (Raymond v. Minton, L. R., 1 Ex. 244), and cancels a contract for personal services of a third person if at the time named, that person is unabie to perform. Spaulding v. Rosa, 71 N. Y. 40. The same rule must apply if the person to whom the service is to be rendered is unwilling to receive it, as in the case first cited.

Therefore as the plaintiff has not performed on his part, the consideration upon which he might be entitled to the trust money fails, and he cannot enforce its payment. (2) In an action for the recovery of money only, and so necessarily triable by a jury (Code Civ. Proc., § 968), and if so tried an interlocutory judgment could not be given; if a jury is waived, and the case tried by the court, and a proper case made out, such a judgment may be rendered the same as if the action were originally triable by the court. Code, § 1207; Murtha v. Curley, 90 N. Y. 372. Cornell v. Cornell. Opinion by Danforth, J [Decided May 9, 1884.]


EMINENT DOMAIN-RAILROAD.-(1) Under the power of an incorporated railway company to condemn land necessary for side tracks, turn-outs or switches, it has no right to take land for the construction of an independent branch road to subserve only new private interests. (2) But it is no valid objection to the condemnation of a strip of land for a switch or a side track of a railway corporation, that the proposed track may serve private use, if in addition to serving such use it is one also necessary for the successful and convenient operations of the main line of the railroad. (3) Where a railway corporation is limited by the authorities of an incorporated village or town to thirty feet in the center of a public street in which to locate its main track, and it becomes necessary to construct a switch or side track, it is no objection to the condemnation of land for that purpose that it runs perpendicular to the main track, there not being room enough in the right of way along the street for the side track in addition to its two main tracks. (4) To deny a petition of a railway company for the condemnation of land for a side track it should appear that the object thereby scught is clearly an abuse of power, and a taking of private property for an object not required for the convenient operation of the road. See Matter of B. & A. R. Co., 53 N. Y. 574; In re N. Y. C. R. Co. v. M. G. L. Co., 63 id. 326, Chicago, R. I. & Pacific R. Co. v. Town of Lake, 71 Ill. 333; Smith v. Chicago and Western Indiana R. Co., 105 id. 511; C. & P. R. Co. v. Speer, 56 Penn. St. 325; In re N. Y. C. & H. R. R. Co., 77 N. Y. 248. South Chicago, etc., R. Co. v. Dix. Opinion by Sheldon, J.

SETTLEMENT-VOLUNTARY-POWER OF REVOCATION. -There is no rule that the want of a power of revocation in a voluntary settlement, or the want of advice as to the insertion of such a power, will afford ground in equity for the donor to set aside such a settlement, but that the same is a circumstance, and a circumstance merely, to be taken into account in determining upon the validity of the settlement, and of more or less weight, according to the facts of each particular See Toker v. Toker, 3 DeG. J. & S. 487; Hall v. Hall, L. R., 8 Ch. App. 437; Bill v. Cureton, 2 Mylne & Keen, 503; Petre v. Espinasse, id. 496; Kekewich v. Manning, 1 DeG. M. & G. 176; Jenkins v. Pye, 12 Pet. 241. In Eckert v. Gridley, 104 Ill. 306, we held that a voluntary settlement upon a child could not be revoked. Finucan v. Kendig. Opinion by Sheldon, J.



COMMON CARRIER-RAILWAY COMPANY-CARS ANOTHER COMPANY HAULED OVER ITS LINE.—(1) A railway company engaged in the transportation of freights for hire as a common carrier is bound to transport or haul upon its road the cars of any other railroad company, when requested to do so, and will hold the same relation as a common carrier to such cars *To appear in 109 Illinois Reports.

that it does to ordinary freight received by it for transportation, and in case of loss will be held to the same measure and character of liability to the owner of the cars so received for transportation as would attach in respect to any other property. (2) In this case the defendant railroad company's principal business was switching cars for other railroad companies. Its tracks were connected with those of the other railroads by a transfer switch, and with mills, elevators and manufactories in and around the city where its business was transacted. The plaintiff corporation brought a car loaded with freight to the city, and placed the same on the transfer track, with orders to the defendant to ship the same to a certain distillery, to which place it was taken and unloaded. When unloaded it was taken by the defendant, without orders from the plaintiff, to a sugar refinery, to be loaded, and then switched to the transfer track for shipment. On the same day the sugar refinery was burned, and also the car. Held, that the defendant was liable, as a common carrier, to the plaintiff for the value of the car so destroyed. Peoria & Pekin Union R. Co. v. Chicago, R. I., etc., R. Co. Opinion by Scott, J.

EVIDENCE-PAROL TO SHOW WHAT WRITING IS-PATENT-RIGHTS OF SEVERAL OWNERS SPECIFIC PERFORMANCE-PARTIES.-(1) The rule that the terms of a written contract must be shown by the writings alone, and that oral testimony exhibiting the various negotiations between the parties leading up to its consummation is to be excluded, applies only as between the parties to written instruments, and those claiming under them. Strangers to a written instrument, when their rights are concerned, are at liberty to show by parof evidence that the contract of the parties is different from what it purports to be on the face of the writing. 2 Pars. Cont. 556, 557; Krider v. Lafferty, 1 Whart. 303; Strader v. Lambeth, 7 B. Mon. 589; Reynolds v. Magness, 2 Ired. L. 26; Edgerly v. Emerson, 23 N. H. 555. (2) Each of the several owners of letters patent, without the concurrence of the joint owners, can lawfully exercise and use the patent privileges and license others to do so. Clum v. Brewer, 2 Curt. C. C. Rep. 506; Dunham v. Railroad Co., 7 Biss. 223; Vose v. Singer, 4 Allen, 226; Mathers v. Green, L. R., 1 Ch. App. 29; Curtis on Patents, §§ 189, 191. (3) The general rule is that to a bill for the specific performance of a contract no persons are necessary parties except the parties to the contract itself. Fry Spec. Per.,§79; Pom. Spec. Per., § 483, and cases cited; Willard v. Taylor, 8 Wall. 557. Mr. Pomeroy says this is the well-settled general doctrine in England, and has been followed by some of the American decisions, though the tendency of the latter decisions is toward the adoption of a more comprehensive rule. In section 492 he lays it down that in general, when the vendor is a trustee, his cestuis que trust need not be joined as co-defendants. Manufacturing Co. v. Wire Fence Co. Opinion by Sheldon, C. J.


has once exhibited a tax deed at the instance of the holder of the certificate to purchase, upon evidence furnished by such holder, cannot subsequently be com pelled by mandamus to execute to the same party another tax deed under the same certificate of purchase, the holder thereof having filed with the clerk additional and more perfect evidence of his having complied with the law in respect to giving notice of the purchase, etc. (2) If however the county clerk himself makes a mistake in executing a tax deed, whereby it is rendered inoperative for the purpose for which it was intended, he may be compelled by mandamus to correct his mistake, and he may make the correction without being coerced thereto by the court. Maxey v.

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