in any proper sense. Telegraph Co. v. Brown (Ind. Sup.), 8 N. E. Rep. 171; Telegraph Co. v. Hope, 11 Ill. App. at page 289, and authorities cited. "Whether the agency is special or general, the authority delegated governs all questions arising between the principal and his agent, out of the agency. Whether the agency is general or special, a principal is responsible to a third person dealing bona fide with his agent, where the agent acts within the scope of the authority actually conferred upon him by the principal, or where the agent acts within the scope of the authority which he has been held out by the principal as possessing. But whether the agency is general or special, a principal is not responsible to a third person dealing with his agent, where that agent acts beyond the scope of both these authorities. It

is clear that a telegraph company is actually au thorized by its employer to communicate a certain message only. It is also clear that it is not held out by him as possessing an authority to communicate any, as distinguished from a certain message." Gray, Commun. Tel. § 105. The delivery, therefore, of an altered message, is the delivery of a message which the company, neither as general or special agent, had, or was held out as having, any authority to deliver; and the liability to the sender is that of an independent principal. It is perfectly obvious that the company is not the servant of the sender; the sender has no authority to control the company, as to the manner in which it does the act. Gray, Commun. Tel. § 104 et seq. The steady growth of this view is shown by the statutes of all the States imposing upon the company the duty of receiving and sending messages for all persons, with the various regulating provisions embraced in these statutes; thus making what had been, prior to such statutes, merely the duty imposed by the law from the peculiar nature of the business of telegraphy, after such statutes a stat utable public duty. And now we have gone the further and completer step indicated in section 195 of the constitution of 1890; all which enforces the justness of the declaration in Telegraph Co. v. Allen, 66 Miss. 555, 6 South. Rep. 461: "The courts then (in the early history of the English law, dealing with common carriers) as now, conscious of the needs of the public, expounded the principles of the law, fitted them to the exigencies of the occasion, and imposed a degree of liability unknown to other contract relations, but required for the safety and protection of the public."

It is also true that the sender may sue the company in tort as well as in contract, in the case of an altered message. Mr. Cooley says: "In many cases an action as for a tort or an action as for a breach of contract may be brought by the same party, on the same state of facts." Cooley, Torts, pp. 103, 104. So Mr. Bigelow says: "The fact that a contract existed, and was broken at the same time and by the same act or omission by which the plaintiff's cause of action arose, is only one of the accidents of the situation. The defendant owed, in respect of the same thing, two distinct duties; one of a special character to the party with whom he contracted, and one of a general character to others. The duty, therefore, does not grow out of the contract, but exists before, and independently of it." Again: "What does it mean when it is said that even this contractee (appellant here answering to the contractee) may sue in tort or in contract for his damages? Certainly nothing, unless the original duty, which the defendant before the contract owed to all alike, still survives, even towards his contractee." And without prolonging this opin

ion on this point, it is sufficient to refer to Bigelow, Tort, pp. 586, 587, 614, and to the elaborate discussion in Rich v. Railroad Co., 87 N. Y. 382. But, whether looked at in the light of contract or of tort, plaintiff's case comes inevitably to this: That plaintiff, at a time when he knew fully of the mistake in the tele gram, and when he could have delivered or refused to deliver the cotton, and when the minds of plaintiff and of Appleton, Dickson & Co. never having met, and there being, as to this sale, no contract made between them, plaintiff was, therefore, under no legal liability to deliver the cotton, nevertheless, acting on the "sentiment" that he would himself protect his agent (already fully protected by the liability in tort of the company to such agent), and maintain his business credit, did not deliver the cotton anyhow, and, having done so, now seeks to hold the company,-can the action be maintained? The only case holding that the action can be maintained, so far as our research has gone, is Telegraph Co. v. Shotter, 71 Ga. 767, 768. The facts in this case are identical with those in Pepper v. Telegraph Co., supra, where the court, after an elaborate review of the American authorities, say: "As already stated, Mr. Gray not only shows that upon principle the English holding is correct, but, while listing the cases above cited, as indicating a contrary view, states that most of them are dicta. There is but one case referred to by him which directly adjudges that the sender of a telegram is bound to the receiver by the terms of the message as negligently altered by the company. That is the case of Telegraph Co. v. Shotter, 71 Ga. 760. With great respect for the high character of that learned tribunal, we cannot approve the line of reasoning pursued, nor the conclusion reached. The learned judge places his conclusion in part on the fact that in England the government has charge of the telegraph lines, and upon the idea that a merchant or business man would lose all credit and commercial standing were he to refuse to make good to his correspondent the contract contained in his message as delivered. We cannot see how the fact of governmental charge of the telegraphic system can make any difference, for in this country the sender is as impotent to control and direct the movements and conduct of the telegraph company as if it were under the government. Nor can we see how the commercial standing of the sender who remits his correspondent to his recourse on the telegraph company for such injury as may result from the erroneous message can be affected." So the case of Harrison & Co. v. Telegraph Co., 10 Am. & Eng. Corp. Cas. 600, is a case directly in point, and stronger in its facts for plaintiff than this case. There plaintiffs, in Texas, wired Latham, Alexander & Co., in New York, to purchase 100 bales of cotton. As delivered, the telegram directed them to sell 100 bales. Latham, Alexander & Co. sold, without plaintiff's knowing anything of the error, and a loss resulted of $129.50, which later, on settlement with Latham, Alexander & Co., plaintiffs paid, claiming they were compelled to pay. The court say: "The mistake which occasioned the loss was a mistake of the telegraph company, and not of the plaintiffs, and they (plaintiffs) were not bound to pay, or make good said loss to Latham, Alexander & Co.; and, if they made such payment, were not responsible or liable therefor. They could not hold the company liable over to them for repayment." This, too, in a case where the loss had been sustained without knowledge on plaintiff's part of the error. To the same effect are Henkel v. Pape, Allen, Tel. Cas. 567, and Verdin v. Robertson, Id. 697. It is not necessary to go so far, and we

express no opinion as to what would be the law had plaintiff here not known, before he acted, all about the mistake. In Pepper's Case and Shotter's Case the goods had been shipped to the place of residence of the sendee, and loss to some extent was inevitable to the sendee. As held in Pepper's Case, it was the plaintiff's duty, in view of all the circumstances, to make the loss as small as possible, and that he could then recover for such loss, as being himself to that extent a loss thus legally sustained the injured party. Mr. Gray correctly remarks (Commun. Tel. p. 185, note 11) that Shotter's Case put the liability upon a "moral, and not a legal ground." Here appellant had shipped no goods, had incurred no legal lia. bility, had merely to refuse to comply with the terms of a contract he had never made, and remit Appleton, Dickson & Co. to their adequate remedy against the company. His payment was voluntarily and gratuitous, and cannot, on any sound or just principle, create for him a cause of action where none existed prior to such voluntary payment.

IS A CAUSE OF ACTION FOR A STATUTORY PENALTY ASSIGNABLE?

§ 1. Qui Tam and Penal Actions.-Many statutes which prescribe a penalty for particular offenses, or for the omission of some public duty, go further and provide that the penalty, or some portion of it, shall be recovered in a civil action by the informer or the person aggrieved. Such provisions are usually directed against common carriers, telegraph and telephone companies, and such instrumentalities for the performance of duties to the general public, and such actions are so frequent in our courts that it becomes of some importance to know whether or not the cause of action of the informer or person aggrieved, in such cases is assignable. Or, in other words, will it survive to his personal representative in case of his death? While no case has been found precisely in point, I think the question must, on principle and authority, be answered in the negative. Such a right of action clearly arises ex delicto; it is the result of a tort or public wrong; there is no element of contract in it. Now, while the rule of the common law that actions ex delicto do not survive, has been considerably modified by later statutes and decisions, the relaxation has never extended to such cases as these. Moreover, such assignments would seem to be within the policy of the law as expressed in the rule against champerty and maintenance. The general principles on these subjects, both at law and in equity, are well settled.

§ 2. Rule as to Survivals at Common Law. -At common law the rule is plain. A right of action ex contractu upon the death of either party survives to or against the personal representative of the party deceased. But where the action is ex delicto the rule is otherwise, and the maxim actio personalis moritur cum persona applies. At common law no action for a tort survived the death either of him who inflicted, or of him who suffered it. "No action," said Lord Mansfield, where the form of action must be quare vi et armis et contra pacem, or where the plea must be that the testator was not guilty, could lie against the executor; upon the face of the record the cause of action arises ex delicto, and all private criminal injuries or wrongs, as well as all public crimes, are buried with the offender."'1 So an action would not lie for the personal representative. Executors and administrators are the representatives of the temporal property; that is, the debts and goods of the deceased, but not of their wrongs except when those wrongs operate to the temporal injury of their personal estate.2

§ 3. Rule as to Assignments.-Moreover, in equity and law an assignment which violates the policy of the law against champerty or maintenance, as operating merely to procure and promote litigation, will be held void as against public policy, even though it may not strictly amount to the criminal offense of champerty or maintenance. Said the Supreme Court of Michigan: "The general doctrine, both in law and in equity, has always been that nothing is assignable that does not directly or indirectly involve a right of property. It has been held repeatedly in this State that equity will not enforce the demands of an assignee of a right to sue for fraud when the cause of action is confined to that." Again, as stated by the English Court of Equity: "The right to complain of a fraud is not a marketable commodity.' § 4. Common Law Rule Applied to Ac

1 Cowp. 375.

2 Chamberlain v. Williamson, 2 Maule & S. cited with approval in Ward v. Blackwood, 41 Ark. 298. 3 Pomeroy Eq. Jur., §1276; 2 Story Eq. Jur., § 1040h; 1 Am. & Eng. Ency., p. 833, tit. "Assignments."

4 Dayton v. Fargo, 45 Mich. 153. See to the same effect Illinois Land & L. Co. v. Speyer (Ill.), 27 N. E. Rep. 931: Bailor v. Dailey, 7 Mackey, 175.

5 De Hoghton v. Money, L. R. 2 Ch. 169. See also Milwaukee, etc. R. Co. v. Milwaukee & Western R. Co., 20 Wis. 183; Smith v. Thompson, 54 N. W. Rep. 168, 94 Mich. 381.

tions for Statutory Penalties.—It is well established that, at common law, actions on penal statutes do not survive. The federal courts, when in the exercise of their common law jurisdiction, that is, in cases where the penalty or for forfeiture is imposed by an act of congress rather than by a State statute, have enforced this rule of the common law. Thus in Schreiber v. Sharpless the suit was for certain penalties and forfeitures, under a statutes for the infringement of a copyright. The defendant died before issue was joined. The plaintiff sought by writ of scire facias to bring in the executor of defendant's will, claiming the right to do so under a State statute. The court held that the question of survival is not a question of procedure, but depends upon the substance of the cause of action; that, as the suit was not for the damages which plaintiff had sustained by the infringement, but for penalties and forfeitures recoverable under the act of congress for a violation of the copyright law, the question of survival is not affected by the State law, but is governed by the common law in the absence of a federal statute, and the court held that the action did not survive. It may be noted that of the penalties imposed by that statute, one-half went to the proprietor of the copyright and one-half to the use of the United States. In United States v. De Goer, 10 the District Court for the Southern District of New York (Brown, J.), in an action for the forfeiture of the value of an importation of gloves for fraudulent undervaluation, held that the act, though partly remedial, was mainly punitive and in that case highly penal, because the loss is out of all proportion to the pecuniary loss incurred by the government; that the action for forfeiture, not being divisible as respects the actual pecuniary loss to the government, was subject to the general rule and abated by the defendant's death.

9

§ 5. Is the Common Law Rule Affected by Statute. Such being the common law rule as to the survival of causes of action ex contractu and ex delicto respectively, and such the application of the rule, at common law,

B. 15, Comyn's Dig. tit. Administration.

7 110 U. S. 76.

8 Rev. Stat. U. S., § 4965.

9 Rev. Stat. U. S., § 4965.

10 38 Fed. Rep. 80.

11 Act of 1779, 1 Stat. L. 677.

14

In

to actions to recover statutory penalties, it remains to be considered how far, in such cases, the common law has been modified by the statute as to the survival of actions. many of the States statutes have been passed enlarging the common law rule as to the survival of actions. Thus, in Arkansas, it is provided that an "action for wrongs done to the person or property of another," may be maintained by or against the executor or administrator of either party respectively.12 Will such a statute authorize the survival of an action to recover a statutory penalty? As we have said, the point is not precisely decided. The Arkansas court, however, has held that the section does not apply to actions for malicious prosecution. In Ward v. Blackwood,13 the court says: "The language of the statute includes every action, the substantial character of which is a bodily injury, a damage of physical character, but does not extend to torts which do not directly affect the person but only the feelings or reputation, such as malicious prosecution.' In Davis v. Railway Co., the same court said of this statute, that the action preserved thereby is "for the loss sustained by the estate, and for the suffering from the personal injury in the lifetime of the decedent, the recovery in which goes to the benefit of decedent's creditors if there are any." In another case, it was held that an action for death by a wrongful act survives the death of the wrongdoer, but the action for the benefit of the widow or next of kin abates on the wrongdoer's death. The court says that the statute does not purport to create a new cause of action or liability, but to devolve an existing common law right or liability on the administrator; that to that extent it abolished the common law; that the injury to the person mentioned in the provision must be construed to mean a bodily injury of a physical character and no other,16 while the injury to the property mentioned in the section so far as it relates to personal property, is such only as was contemplated by the statute of 4 Edward III., ch. 7, on the same subject.17

12 Sand. & H. Dig., § 5908; Mansf. Dig., § 5223. 13 41 Ark. 298.

14 Citing Smith v. Sherman, 4 Cush. 408; Nettleton v. Dinehart, 5 Cush. 543; Norton v. Sewall, 106 Mass. 143.

15 53 Ark. 126.

16 Citing Ward v. Blackwood, 41. Ark. 295.

17 Davis v. Nichols, 54 Ark. 358, citing and relying

The language of this old statute shows clearly that the actions which were by it preserved to the personal representative, were limited to those arising out of wrongs to the property of the decedent. It is as follows: "Whereas, in times past executors have not had actions for a trespass done to their testators as of goods and chattels of the same testators carried away in their life, and, so, such trespasses have hitherto remained unpunished, it is enacted that the executors in such cases shall have an action against the trespassers and recover their damages in like manner, as they, whose executors they be, should have had if they were in life." Clearly this statute cannot be held to provide for the survival of the right of action for a statutory penalty. § 6. Such Penalties not Liquidated Damages. There is no element of property in the right to sue for a statutory penalty, nor can the action be regarded as ex contractu in any

sense.

Such enactments are not intended to fix liquidated damages, as a compensation to the person wronged, but rather to prescribe a punishment of the wrongdoer that may have the effect of deterring others from like offenses. The Arkansas court, in discussing cumulation of penalties for overcharges on the part of carrier of passengers, said that "the act was not intended to provide a compensation for the injured passenger; but to deter the railroad companies from taking excessive fares by punishing every such act. Each overcharge is a violation of law, and every payment of it is a legal wrong to the party making it, who is thereby aggrieved within the meaning of the act, and by its express terms entitled to sue. Again, in Baltimore, etc. Tel. Co. v. Lovejoy,19 where the suit was against a telegraph company to recover the statutory penalty for the nondelivery of the message,20 it was held that the action was for a statutory penalty and not ex contractu, and was not within the jurisdiction of a justice of the peace; that though the suit in such cases be in the form of an action of debt, yet "debt for a statutory penalty, while it was in form ex contractu, was in reality founded upon a tort."21 A like interpretation

18

upon Russel v. Sunbury, 37 Ohio St. 372; Witters v. Foster, 26 Fed. Rep. 737.

18 Railroad Co. v. Gill, 54 Ark. 106.

19 48 Ark. 301.

20 Mansf. Dig., § 6410.

21 See also Bagley v. Shoppach, 43 Ark. 375.

has been put upon similar statutes in other States. Thus, in Virginia, in West. Union Tel. Co. v. Bright, 22 a suit to recover a penalty of $100 for failure to deliver a telegram is distinguished from "any action on contract" as being a proceeding founded, not upon contract but upon tort, i. e., a wrongful violation of a public duty. It is true an action of debt lies for a statutory penalty, but this is because the sum demanded is certain, and not because the cause of action arises ex con

tractu.23 Again, in Western Union Tel. Co. v. Pettyjohn,24 the same court, under a provision of the Code, 25 limiting the jurisdiction of a justice of the peace to any claim for a fine, if the amount thereof does not exceed $20, and to other claims where the amount does not exceed $100, it was held that a justice has no jurisdiction to enforce the $100 penalty imposed by the above quoted statute upon telegraph companies for failure to deliver a dispatch, since such penalty is a fine within the meaning of the statute. In Indiana, there is a statute imposing a penalty of $100 on telegraph companies for failure to transmit messages with impartiality and good faith, and in the order in which they are received, to be recovered by the person whose dispatch is postponed or neglected. It has been repeatedly held that this is a penal statute, and does not award liquidated damages. Said Elliott, J., in Western Union Tel. Co. v. Pendleton:26 "No question of the right to damage is involved; the single question is as to the right to recover a statutory penalty. Counsel are in error in asserting that there is a conflict in our cases upon this subject; from first to last it has been steadily held that the statute is a penal one awarding not liquidated damages but a penalty. It is also decided by these cases that the foundation of the right is the contract with the corporation, but in none of them is it intimated that the recovery is for damages for a breach of contract; on the contrary, all our decisions affirm that the recovery is for a penalty given by statute to a private individual."'27 Again, it 22 20 S. E. Rep. 147.

23 Chaffee v. United States, 18 Wall. 516. 24 88 Va. 296, 13 S. E. Rep. 451.

25 Code Va., § 2939. 26 95 Ind. 12.

27 See also Carnahan v. West. Union Tel. Co., 89 Ind 527; West. Union Tel. Co. v. Adams, 87 Ind. 598; West. Union Tel. Co. v. Gongar, 84 Ind. 176; West. Union Tel. Co. v. Hamilton, 57 Ind. 181: West. Union Tel. Co. v. Buchanan, 35 Ind. 436.

is said: "The statute is a highly penal one, and we cannot extend its operation by a liberal construction.''28 In California a statute similar to that of Indiana, except that the penalty is $500 instead of $100 to be recovered by the sender, was construed in Thurn v. Alta Tel. Co.,29 and it was said: "The sum to be recovered is a penalty for this breach of duty (i. e., the failure to transmit the message), and the act in this section is a penal law, and is to be strictly construed.''30 The legal characteristics of a penal statute are admirably stated by the California court as follows: "A penal statute is one that imposes a penalty or creates a forfeiture as the punishment for the neglect of some duty, or the commission of some wrong that concerns the good of the public, and is commanded or prohibited by law. The law generally first prescribes what shall or what shall not be done, and then declares the penalty. Its primary object is punishment and to deter others from offending in like manner, though it may give the penalty, or some portion of it, to the person who may prosecute the action.31

§ 7. Conclusion.-Finally, it would seem to be clear, beyond question, that a statute prescribing a penalty for the commission of some offense, or the omission of some duty, is a penal statute, notwithstanding a provision that a portion or all of the penalty may be recovered in a suit, civil in form, by the informer, or "person aggrieved;" that such penalty is a punishment for a public tort, and not liquidated damages in compensation of a private injury; that, therefore, the cause of action given by such a statute arises ex delicto and not ex contractu, though the wrong which constitutes the gravamen of the offense is in itself a breach of contract; that being ex delicto, such cause of action is not assignable, and does not survive under the principles of the common law; and that since it does not arise from injuries either to the person or property of the plaintiff, it is not within the statutes on the survival of causes of action. WILLIAM L. MURFREE, JR.

28 Rogers v. West. Union Tel. Co., 78 Ind. 169, citing West. Union Tel. Co. v. Axtell, 69 Ind. 199.

29 15 Cal. 472.

30 Citing Russell v. Lby., 13 Ala. 131; Batchelder v. Kelly, 10 N. H. 436.

31 Citing Reed v. Northfield, 13 Pick. 94; Suffolk Bk. v. Worcester Bk., 5 Pick. 106; Frohock v. Pattee, 38 Me. 103; Bayard v. Smith, 17 Wend. 88; Sedg. Stat. Const. L. 333 et seq.

CONDITIONS SUBSEQUENT - SUPPORT - OC. CUPANCY OF LAND.

RINGROSE V. RINGROSE.

Supreme Court of Pennsylvania, October 7, 1895.

A deed, wherein the consideration is the support and maintenance of the grantor on the land conveyed, inasmuch as it provides for an occupancy of the land, contains a condition subsequent, which may be enforced against any one into whose ownership the land may pass.

GREEN, J.: The deed from Roger Ringrose and his wife, the present plaintiff, to Michael Ringrose, dated March 28, 1874, was for three tracts of land, one of which, known as the "Homestead Farm," containing 100 acres, is the subject of the present action of ejectment. A nominal consideration of $3,000, which was never paid, or intended to be paid, was recited in the deed; but in the body of the deed, and immediately following the description of the lands, appears the following recital: "The above-described land and interest in the same conveyed to the party of the second part by his agreeing to support his father and mother, Roger Ringrose and Mary Ringrose, his wife, to do well and sufficiently maintain, support, and keep the said Roger and Mary Ringrose, his father and mother, during their natural lives, or the survivor of them, with good and sufficient meat, drink, apparel, washing, and lodging, use and occupancy of the dwelling where they now reside, and medical attendance in sickness and in health, and the funeral expenses of either of them, with the use of horses and carriages to take them to and from church at any time, and all times, and elsewhere at all times, as they may wish to go, and to furnish to each and either of them the sum of $25 per year during their natural lives, and also to pay to Mary O'Neil $250, and to Bridget Ringrose $250, at the death of the said Roger Ringrose and Mary Ringrose, his wife, and not before." It is apparent at once that the true and only consideration of the conveyance was the performance by Michael Ringrose of the stipulations expressed in the foregoing recital. The expression of the obligation of the grantee is peculiar, but perfectly clear: "The above-described land and interest in the same conveyed to the party of the second part by his agreeing to support his father and mother," etc.; that is, the land is conveyed because of, or in consideration of, the agreement of the grantee to do the several things next expressed. Of course, the performance is to take place in the future. The question arising in this case is whether the provision in favor of the grantors is a charge upon the land which will follow it into the hands of subsequent purchasers, whether at judicial or private sales. Being embodied in the deed, it is notice to all purchasers claiming by subsequent conveyances. If the agreement for support and maintenance was a mere personal covenant of the grantee, unaccompanied by any provision for the permanent occupancy by the