ment of the parties." See also the case of Armstrong v. Risteau, 5 Id. 276 [59 Am. Dec. 115].

Again, the appellee contends that the first prayer is bad, "because it could not be granted unless the court assumed the non-existence of all other testimony given in the cause; because by the prayer no part of it is submitted to the finding of the jury." In our opinion, the appellant, in presenting this prayer to the court, only exercised a right recognized by law. In Whiteford v. Burckmyer, 1 Gill, 143 [39 Am. Dec. 640], the court say: "We hold it to be the privilege of a party to raise any question of law arising out of the facts of the case, and to demand the opinion of the court distinctly upon it. If the opposite party believes that other facts not embraced in the hypothesis assumed are properly calculated to justify an application for other and different instructions, he has the equal privilege of asking an opinion on the additional facts, but not the privilege of controlling and modifying the hypothesis of his antagonist." Here the appellee has brought itself within the above rule, by asking an instruction from the court on other facts not embraced in the prayer of the appellant. It is further contended by the appellee, that it is protected from the demand of the appellant by its rules and regulations established under the act of 1852, chapter 369.

By a careful examination of those rules and regulations, we find no provision exempting the appellee from liability in a case of default and neglect such as is contained in the statement of facts.

It is admitted by the statement of facts that the appellant delivered the message for transmission, and paid the price demanded for that service; that the person who received it was the authorized agent of the appellee; that the message was received at the appellee's place of business; that the appellee forgot and neglected to send said message and despatch, and it has never been sent. The loss of the appellant in the sale of his stock is also admitted. We must, therefore, regard the appellee as a party contracting to perform a service within the sphere of its business for compensation, which it fails to perform, and for such failure, must account for any loss or injury that results from its neglect; and such loss or injury will be the measure of damages to which the plaintiff is entitled, whether admitted or found by the jury.

The appellant's first prayer was, therefore, improperly rejected. The action of the court below, upon the appellant's

second and third prayers, we must approve. The rule laid down in Gray v. Crook, 12 Gill & J. 236, and Doyle v. Commissioners, Id. 484, is directly applicable to these prayers. The court say: "Where the court cannot grant the entire prayer as made, though a portion of it, in a separate, distinct form, might have been given, it is not error to reject the whole." We think the latter part of the second and third prayers of the appellant obnoxious to this rule. They substantially raise the question, that though the default and neglect of which the plaintiff complains may be embraced within the rules and regulations exempting the appellee from liability, yet that liability is not removed unless these rules and regulations are brought home to the knowledge of the appellant. In our opinion, the converse of the proposition is true: the appellant was bound in law to know them.

The appellant's counsel attempted to assimilate the responsi bility of this telegraph company to that of a common carrier. But the distinction is obvious. It is well defined by the appellee: "What does a telegraph company do? It receives a written message for transmission. It uses machinery to reproduce the words of that message at a distant point, either by direct copying of it under some alphabetical system, or by translating the message into certain symbols, which, marked upon paper at a distant point, are there translated into our ordinary language. It cannot be said to be even in the manual charge of the message, so transmitted, during its transmission. It relies on machinery and upon threads of communication which are liable to breaks or interruption, through accident, influence of the climate, wantonness, or malice. These cir cumstances make it impossible for the company to remain in actual practical custody of its line."

While a common carrier is an insurer, and is protected from. liability by the act of God or the enemies of the state, he can avail himself only of such excuses. He sees what happens to his charge at the moment it happens. But a telegraph company, owing to innumerable causes which may disturb the security of its lines, would be as often open to liability because of the providences of God, unknown to it, as because of any other reason.

This telegraph company is not a common carrier, but a bailee performing, through its agents, a work for its employer, according to certain rules and regulations, which, under the law, it has a right to make for its government. The appellant

is supposed to know that the engagements of the appellee are controlled by those rules and regulations, and does himself, in law, ingraft them in his contract of bailment, and is bound by them.

The appellee cannot be considered a common carrier, because, by the act of 1852, chapter 369, it was authorized to contract, not by the force of any common-law duty or obligation, but in accordance with its rules and regulations, and this power is inconsistent with the common-law definition of a carrier.

The prayer of the appellee was erroneously granted. Conceding that the notice read in evidence contained the terms on which the appellee would receive and transmit messages, and its exemption from liability, as stated in the prayer; and also, that this notice was displayed in the office of the company, so that the appellant saw or might have seen it: still, it is manifest that the terms of the notice neither embrace nor declare an exemption from liability in a case where no effort is made by the company, or its agents, to put a message on its transit. The exemption from liability for the non-transmission and non-delivery of unrepeated messages, provided for by the rules contained in the notice, does not, in our opinion, in any way embrace or affect this case.

The terms of the notice in which exemption from liability is declared clearly imply an obligation on the part of the company to attempt the transmission and delivery of a message received by it for that purpose, and it would be most unreasonable to permit it to have the benefit of an exemption from liability without first bringing itself within the scope of the exemption provided for, by a full and faithful performance of its implied duties.

While we give full force and effect to the rules and regulations of the appellee in a legal construction of them, we deem it unjust to the appellant to extend that effect beyond the actual terms adopted by the appellee to secure its exemption. Judgment reversed, and procedendo awarded.

THE PRINCIPAL CASE IS RE-REPORTED in Allen's Telegraph Cases, 195. TELEGRAPH COMPANY'S POWER TO LIMIT LIABILITY: See Camp v. Western Union Telegraph Co., 71 Am. Dec. 461, and exhaustive note. A telegraph company may limit or modify its liability by stipulation: Tyler v. Western U. T. Co., 60 Ill. 430; S. C., 14 Am. Rep. 44; Sweetland v. Illinois etc. T. Co., 27 Iowa, 447; S. C., 1 Am. Rep. 289; Allen's Tel. Cas. 482; Breese v. United States T. Co., 48 N. Y. 141; S.C., 8 Am. Rep. 531; Allen's Tel. Cas. 684; Western

U. T. Co. v. Neill, 57 Tex. 289; S. C., 44 Am. Rep. 593; and one who contracts with a telegraph company is bound to know that the engagements of the company are controlled by its rules and regulations, and he himself ingrafts them in his contract, and is bound by them: United States T. Co. v. Gilder. sleeve, 29 Md. 247; S. C., Allen's Tel. Cas. 403; but the company's regulation with regard to the repetition of messages will not apply to a case of neglect, where no effort was made to put a message upon its transit: Western U. T. Co. v. Graham, 1 Col. 236; S. C., 9 Am. Rep. 141; 10 Am. Law Reg. 324; Allen's Tel. Cas. 584; Grinnell v. Western U. T. Co. 113 Mass. 307; S. C., 18 Am. Rep. 492; Western U. T. Co. v. Buchannan, 35 Ind. 439; S. C., 9 Am. Rep. 752. A telegraph company cannot, however, contract against its own negligence: True v. International T. Co. 60 Me. 18; S. C., 11 Am. Rep. 162; Allen's Tel. Cas. 539; Breese v. United States T. Co., supra. The principal case is cited to the foregoing points; and it is also referred to in Ellis v. American T. Co., 13 Allen, 238, S. C., Allen's Tel. Cas. 319, as being a well-considered case upon this subject.

TELEGRAPH COMPANY'S GENERAL DUTIES AND LIABILITIES. — TELEGRAPH COMPANIES ARE NOT COMMON CARRIERS. - Notwithstanding some intimations to the contrary found in some early cases, — Parks v. Alta California T. Co., 13 Cal. 422; S. C., 73 Am. Dec. 589; Allen's Tel. Cas. 114; Bowen v. Lake Erie T. Co., 1 Am. Law Reg. 685; S. C., Allen's Tel. Cas. 7; MacAndrew v. Electric T. Co., 17 C. B. 3; S. C., Allen's Tel. Cas. 38, it is now too well settled to admit of any question that telegraph companies are not common carriers, and are consequently not insurers of the safety of transmission of messages: Note to Camp v. Western U. T. Co., 71 Am. Dec. 463; Gray on Communication by Telegraph, sec. 8; Scott and Jarnagin on Telegraphs, sec. 230; Cooley on Torts, 646; 2 Thompson on Negligence, 836; Wharton on Negligence, sec. 756; Redfield on Carriers, sec. 556; Lawson on Contracts of Carriers, sec. 1; Schouler on Bailments, 244, note; Playford v. United King dom E. T. Co., L. R. 4 Q. B. 706; S. C., 17 L. T., N. S., 243; Allen's Tel. Cas. 437; Dickson v. Reuter's T. Co., L. R. 2 C. P. Div. 62; 3 Id. 1; Baxter v. Dominion T. Co., 37 U. C. Q. B. 470; Little Rock etc. T. Co. v. Davis, 41 Ark. 79; Western U. T. Co. v. Fontaine, 58 Ga. 433; Tyler v. Western U. T. Co., 60 Ill. 421; S. C., 14 Am. Rep. 38; Bartlett v. Western U. T. Co., 62 Me. 209; S. C., 16 Am. Rep. 437; Ellis v. American T. Co., 13 Allen, 226; S. C., Allen's. Tel. Cas. 306; Grinnell v. Western U. T. Co., 113 Mass. 299; S. C., 18 Am. Rep. 485; Western U. T. Co. v. Carew, 15 Mich. 525; S. C., Allen's Tel. Cas. 345; Leonard v. New York etc. T. Co., 41 N. Y. 544; S. C., 1 Am. Rep. 446; Allen's Tel. Cas. 500; Baldwin v. United States T. Co., 45 N. Y. 744; S. C., Am. Rep. 165; Allen's Tel. Cas. 613; Breese v. United States T. Co., 48 N. Y. 132; S. C., 8 Am. Rep. 526; Allen's Tel. Cas. 663; Schwartz v. Atlantic etc. T. Co., 18 Hun, 157; De Rutte v. New York etc. T. Co., 1 Daly, 547; S. C., 30 How. Pr. 403; Allen's Tel. Cas. 273; Bryant v. American T. Co., 1 Daly, 575, 584; S. C., Allen's Tel. Cas. 288; New York etc. T. Co. v. Dryburg, 35 Pa. St. 298; S. C., Allen's Tel. Cas. 157; Wolf v. Western U. T. Co., 62 Pa. St. 83; S. C., 1 Am. Rep. 387; Allen's Tel. Cas. 463; Aiken v. Telegraph Co., 5 S. C. 358; Washington etc. T. Co. v. Hobson, 15 Gratt. 122; S. C., Allen's Tel. Cas. 120; Shields v. Washington etc. T. Co., 4 Am. Law Jour., N. S., 311; S. C., 9 Western Law Jour. 283; Allen's Tel. Cas. 5; White v. Western U. T. Co., 14 Fed. Rep. 710; Abraham v. Western U. T. Co., 23 Id. 315; S. C., 6 West Coast Rep. 163; Hart v. Western U. T. Co., Id. 195. The principal case is cited to this effect in Western U. T. Co. v. Buchannan, 35 Ind. 439; S C., 9 Am. Rep. 752; Telegraph Co. v. Griswold, 37 Ohio St. 310; S. C., 41 Am. Rep. 502;

Western U. T. Co. v. Neill, 57 Tex. 288; S. C., 44 Am. Rep. 592; Western U. T. Co. v. Reynolds, 77 Va. 181; S. C., 46 Am. Rep. 721. "The reasons of policy and expediency on which the rule of the common law is founded, which imposes on carriers of goods a liability for all losses not caused by the act of God or the public enemy, do not apply to the business of transmitting messages by means of the electric telegraph": Ellis v. American T. Co., supra, per Bigelow, C. J.

TELEGRAPH COMPANIES, WHETHER BAILEES. — As in the principal case, telegraph companies are sometimes said to be bailees: Smithson v. United States T. Co. 29 Md. 162. 167, S. C., Allen's Tel. Cas. 385; Western U. T. Co. v. Fontaine, 58 Ga. 433; Pinckney v. Western U. T. Co., 19 S. C. 71. Mr. Schouler, in his work on bailments, 243, note, criticises the disposition to range the business of telegraphing under this head. But the engagement is undoubtedly in the nature of a bailment, locatio operis mercium vehendarum: Scott and Jarnagin on Telegraphs, sec. 98; Gray on Communication by Telegraph, sec. 5.

TELEGRAPH COMPANIES' LIABILITY for NegligencE IN GENERAL.-While, therefore, telegraph companies are not held to the strict liabilities of common carriers, and are not liable for mistakes and delays caused by atmos pheric influences, nevertheless they are responsible for their negligence. But to what degree of care and diligence they are held is variously stated. Some authorities speak of "ordinary," "reasonable," "due," and "proper" care being demanded, while others would exact the "highest" degree: See Scott and Jarnagin on Telegraphs, sec. 120; Schouler on Bailments, 244, note; note to White v. Western U. T. Co., 14 Fed. Rep. 720; Little Rock etc. T. Co. v. Davis, 41 Ark. 79; Tyler v. Western U. T. Co., 69 Ill. 421; S. C., 14 Am Rep. 38; United States T. Co. v. Gildersleeve, 29 Md. 232; S. C., Allen's Tel. Cas. 390; Western U. T. Co. v. Carew, 15 Mich. 525; S. C., Allen's Tel. Cas. 345; Leonard v. New York etc. T. Co., 41 N. Y. 544; S. C., 1 Am. Rep. 446; Allen's Tel. Cas. 500; Baldwin v. United States T. Co., 45 N. Y. 744; S. C., 6 Am. Rep. 165; S. C., Allen's Tel. Cas. 613; Hibbard v. Western U. T. Co., 33 Wis. 558; S. C., 14 Am. Rep. 775; Passmore v. Western U. T. Co., 78 Pa. St. 238; Candee v. Western U. T. Co., 34 Wis. 471; S. C., 17 Am. Rep. 452; 8 Am. Law Rev. 374; Stevenson v. Montreal T. Co., 16 U. C. Q. B. 530, 540; S. C., Allen's Tel. Cas. 71. The true rule seems to us to require an amount of care and diligence in proportion to the responsibility, and to exact, therefore, a relative high degree: Shearman and Redfield on Negligence, sec. 556; 2 Thompson on Negligence. 837; Wharton on Negligence, sec. 756; Elwood v. Western U. T. Co., 45 N. Y. 549; S. C., 6 Am. Rep. 140; Allen's Tel. Cas. 594; Breeze v. United States T. Co. 48 N. Y. 132; S. C., 8 Am. Rep. 526; Allen's Tel. Cas. 663; De Rutte v. New York etc. T. Co., 1 Daly, 547; S. C., 30 How. Pr. 403; Allen's Tel. Cas. 273; Bartlett v. Western U. T. Co., 62 Me. 209; S. C., 16 Am. Rep. 437, 447; Western U. T. Co. v. Neill, 57 Tex. 283; S. C., 44 Am. Rep. 589; Abraham v. Western U. T. Co., 23 Fed. Rep. 315; S. C., 6 West Coast Rep. 163. Thus, says Earl, C., in Breeze v. United States T. Co., supra, telegraph companies "do not insure the safe and accurate transmission of messages, but they are bound to transmit them with care and diligence adequate to the business which they undertake, and if they fail in such care and diligence they become responsible." In Shearman and Redfield on Negligence, sec. 556, it is said that "the degree of care which a telegraph company is bound to use may be called 'ordinary,' if we measure the meaning of that word solely by reference to the kind of care which a man of ordinary prudence would use in telegraphing for himself; but as compared