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had been, the return would go iu mitigation of dam- liable for mistakes or delays in the transmission or de ages upon the same principle as in trover.

livery, or for non-delivery of any unrepeated message, Judgment on the verdict.

whether happening by negligence of its servants or otherwise, beyond the amount received for sending

the same; nor for mistakes or delays in the transmisTELEGRAPH COMPANIES-LIMITATION OF LIA.sion or delivery, or for pou-delivery of any repeated BILITY-PRESUMPTION OF NEGLIGENCE.

message, beyond fifty times the sum received for sending the same, unless specially insured; nor in any case

for delays arising from unavoidable interruptious in SUPREME COURT OF CALIFORNIA.

in the working of its lines, or for errors in cipher or SEPTEMBER 18, 1884.

obscure messages."

That the message in question was not “repeated" is HART V. WESTERN UNION TELEGRAPH Co.*

conceded by the plaintiff. It further appears in the A stipulation purporting to exempt a telegraph corporation case that no explanation of the meaning of the dis

from all liability for mistakes or delays in the transmis- patch was made by the plaintiff at the time be delir. sion or delivery, or for non-delivery, of any unrepeated | ered it to the defendant, for wbich reason, and be message, whether happening by negligence of its servants cause, as is claimed, the nessage under consideration or otherwise, beyond the amount received for sending the was in cipher, appellant contends that the measure of

same, is void for want of consideration to support it. damages is the price paid for the transmission of the It is not competent for telegraph companies to stipulate telegram in this case, thirty cents. In support of this

against or limit their liability for mistakes happening in point it is said by counsel that “the decisions of all consequence of their own fault; such as want of proper the courts uniformly declare that unless the importskill or ordinary care on the part of their operators, or ance of the message is shown, either by its own terms the use of defective instruments. They are exempt only or by explanation made to the person receiving it in for errors arising from causes beyond their control; and behalf of the telegraph company, no damages are rewhether such error was caused by negligence, or was be- coverable for failure or delay in transmission beyond yond their control, is a question for the jury, the pre- the price paid for that purpose.” In this appellant's sumption being that it occurred through negligence.

counsel is mistaken. The cases cited by him undoubtDET EPARTMENT 1. Appeal from the Superior edly sustain the point he makes, and there are otber Court of San Joaquin county.

cases to the same effect. Some of those decisions were

based on messages which were in cipher; and others, W. H. L. Barnes, for appellant.

messages, which though not in cipher, did not themByers & Elliot, for respondent.

selves disclose the extent or import of any transaction Ross, J. On the 15th day of December, 1882, the had in contemplation by the parties. In those cases plaintiff delivered to the defendant, at its Stockton substantial damages were refused because neither the office, this message: “George W. McNear, San Fran- messages nor other information given made known to cisco: Buy bail barley falun; report by mail. George the operator what was contemplated. Hence it was Hart.” The message was promptly transmitted and

ruled that plaintiff could not recover of the tele. delivered as written, except that the word “bail” was graph company what, not understanding, it could not changed to the word “bain.” By the private cipher have contemplated as the effect of a miscarriage or code of McNear, used by the plaintiff in the message,

other failure. the word “bail" means “one hundred tons," and the

While not doubting the general rule that damages word “bain” means "two hundred and twenty-five

must be such as may be fairly supposed to have entons." As the message was delivered, it directed Mc

tered into the contemplation of the parties when they Near to buy for the account of the plaintiff 225 tons of made the contract, that is, such as might be naturally barley, whereas, as it was written by the plaintiff, expected to follow its violation, we do question, and McNear was directed to buy on plaintiff's account 100 think not sound, the application of that rule as made tons only. Acting on the message received, MoNear 1 in the class of cases to which allusion is above made. bought for plaintiff 200 tons of barley. When the Telegraph companies have conferred upon them by plaintiff discovered that fact he notified the defendant law certain privileges, among them the right of emi. that 100 tons had been bought in excess of that di

nent domain, and they are charged with certain darected to be bought by the original message, and ties; among them, the obligation to send promptly asked the defendant what he should do with the sur

and correctly such messages as are intrusted to them. plus so purchased ? Defendant refused to give any in. Of course, if illegibly written, the operator may restruction in regard to it. Plaintiff thereupon sold the ject a message; but if plainly written his duty is to barley at the highest market rate, his loss on the extra send it as written. Why has he the right to know 100 tous being $429.82. It is for the loss thus sus- what the message refers to? In what way would such tained by him that the action is brought.

knowledge aid him in the discharge of his duty to At the trial the only proof given by the plaintiff to send it correctly? "One of the great attractions." show negligence on the part of the defendant was the say Scott avd Jarnagin, in their treatise on the Law of admitted fact that the message was delivered in its Telegraphs, $ 404: “which this mode of communication altered form. It was also admitted that the message

presents, is the brerity of the dispatch, such abbreviawas written by the plaintiff upon a printed form pre

tions being used in many cases as will enable the per pared by the defendant, underneath the words, "send son for whom it is intended alone to understand it, the following message, subject to the above terms,

and hence the vast amount of business the telegraph which are hereby agreed to;" and that among the operator is capable of transacting in the transmission "above terms" referred to are the following:

and delivery of messages. So that an explanation of “To guard against mistakes or delays the sender of the meaning, importance, and bearing of each message a message should order it repeated; that is, telegraph would be an insufferable annoyance, and in the mulback to the originating office for comparison. For this, tiplicity of messages delivered for transmission, could one-half the regular rate is cbarged in addition. It is

not be remembered, even if the time could be spared agreed between the sender of the following message

to listen to it, and it would rarely afford any benefit and this company that said company shall not be

or advantage to the company after the information

was communicated." Proceeding, these writers say, *S. C., 4 Pac. Rep. 657.

and say correctly, that though the company, through

its agents, may not kuow the meaning of the particu- and willing and able to perform the service for wholar message, they do know that messages of great soever comes ‘and pays the consideration itself had value and importance, involving heavy losses in case fixed and declared to be sufficient, and actually receivof failure or delay, or mistake in their transmission, ing such consideration, it can not be denied, we thiuk, are constantly sent over their wires; and they do know that a legal obligation arises, and duty exists on the that they hold themselves out to the public as pre- part of the company to transmit the message with pared at all times, and for all persons to transmit mes- reasonable care and diligence, according to the request sages of this description. And the rule of damages as of the sender. Such being the attitude of the comapplied to telegraph companies is there deduced, pany, and the obligation which it assumes by acceptwhich we think the true rule, namely, that although ing the payment, the question arising is whether it the message be unintelligible to the company, yet as can at the same time, and as a part of the very act of its undertaking was to transmit the message promptly creating the obligation, exact and receive from the and correctly, both parties contemplated that what. other party to the contract a release from it? The ever loss should naturally, and in the usual course of regulations under consideration, if looked upon as things, follow a violation of that obligation, the com- reasonable and valid, completely nullify the contract pany should be responsible for. The same conclusion by absolving the company from all obligation to perwas reached by the Supreme Court of Alabama in the form it, and the party delivering the message gets case entitled Doughtry v. Amer. U. Tel. Co., decided nothing in return for the price of transmission paid in December, 1883, a note of which will be found at by him. Is it possible for the company, or for any p. 731, 46 Am. Rep., and by the Court of Appeals of other party entering into a contract for a valuable Virginia in the case of W. U. Tel. Co. v. Reynolds, 77 consideration received, to promise and not to promise, Va. 173; see also Rittenhouse v. Independent Line of or to create and not to create, an obligation or duty Tel., 1 Daly, 474.

at one and the same moment and by one and the same It is also contended on behalf of the defendant cor- act? The inconsistency and impossibility of such poration, that as the message in question was not “re- things are obvious. But if there were no such diffipeated,” defendant is not responsible, under any cir- culties, or if the occasion or circamstances were such cumstances., beyond the amount received for its trans- that a valid release might be executed, and it be remission; and this because it is so declared in the con- garded in that light, still the objection exists, that ditions printed at the head of the form upon which there is no consideration whatever to support it, and the dispatch was written, and to which as is claimed it must be held void on that ground. If it be urged the plaintiff assented. Tbere are numerous cases thau that the sender receives his consideration in the rehold that such a rule on the part of the company is duced price of transmission, or because the company reasonable, valid, and binding on the sender of the undertakes to send the message at one-half the usual message. The cases that so hold are too numerous to rates of transmitting day messages, that argument be here referred to in detail. They will be found col. ends in proving that the company does not underlated in a note to the case of W. U. Tel. Co. v. Blanch. take to send the message at all, and that no contract ard, 45 Am. Rep. 486. But there are many cases to or agreement on its part is made or entered into for the contrary, and the latter class we think based on that purpose. If the company promises or binds itself the better reason. In the first place we agree with the at all for the rate or consideration named, and which Supreme Court of Illinois in the case of Tyler v. W. | it is willing to and does accept, then the smallness of U. Tel. Co., 60 III. 421 ; and S. C., 74 id. 170, where it of such consideration cannot operate to relieve from is held that the regulatiou requiring messages to be re- the promise or to destroy the obligation thus created. peated is not a contract binding in law, for the reason Regarding the regulations in this light therefore, as that the law imposed upon the company duties to be well as in that of correct public policy, it is seen that performed, for the performance of which it was en- erfect cannot be given to them as a means of protec. titled to a compensation fixed by itself, and which the tion or escape on the part of the company from all sender had no choice but to pay; tbat among those liability for the performance of its contract. The duties was that of transmitting messages correctly; regulations cannot serve to shield the company from that the tariff paid was the consideration for the per- the consequences resulting from the gross negligence formance of this duty in each particular case, and or fraud of its afficers or agents, or from their entire when the charges were paid the duty of the company failure to perform the service, no good excuse for such began, and there was therefore no consideration for failure being offered or shown." the supposed contract requiring the sender to repeat We therefore hold that the stipulation purporting to the message at an additional cost of 50 per cent of the exempt the corporation defendant from all liability original charge. To the same effect is Bartlett v. W. for mistakes or delays in the transmission or delivery, U. Tel. Co., 62 Me. 218, and Candee v. W. U. Tel. Co., or for non-delivery of any unrepeated message, whether 34 Wis. 477, where the court say:

happening by negligence of its servants or otherwise, "Aside from the objections resting on grounds of beyond the amount received for sending the same, is public policy, and which forbid the company from void for want of a consideration to support it. And stipulating for immunity from the consequences of its further, that it is not competent for telegraph comown wrongful acts, it seems very clear to us that there panies to stipulate against or limit their liability for cau be no consideration for such stipulation on the mistakes happening in consequence of their own fault, part of the sender of the message, and that so far as he such as want of proper skill or ordinary care on the is concerned, it is void for that reason, although ex- part of their operators, or the use of defective instruacted by the company and fully assented to by bim. ments. See authorities above cited, and Sweatland v. Either the company enters into a contract with him, IU. & Miss. Tel Co., 27 Iowa, 433; Wolf v. Western U. and takes upon itself the burden of some sort of legal Tel. Co., 62 Pemu. St. 83; Breese v. U. S. Tel. Co., 48 N. obligation to send the message, or it does not. It Y. 132; U. S. Tel. Co. v. Gildersleeve, 29 Md. 232; W. would be manifestly against reason, and what all must U. Tel. Co. v. Buchanan, 35 Ind. 429; Hibbard v. W. assume to be the intention of the parties, to say that U. Tel. Co., 33 Wis. 558; Tel. Co. v. Griswold, 37 Ohio no contract whatever is made between them, and St. 301. We think the true rule is that such compannobody, not even the officers or representatives of the ies are exempt only for errors arising from causes becompany, asserts such a doctrine. It would seem ut. yond their own control. And this would seem to be terly absurd to assert it. Holding itself out as ready the rule adopted by statute in this State; for by section 2162 of the Civil Code it is declared: “A carrier ment. S. B.& N.Y.R. Co.y.Collins, 57 N.Y.641; S.C., 1 of messages for reward must use great care and dili- Abb. N. C. 47; Brennan v. Wilson, 1 N. Y. 502. geuce in the transmission and delivery of messa- Such an assignment however does not take effect to ges. A carrier by telegraph must use the utmost dili- | pass title to personal property situate in another State gence therein."

in contravention of the laws of that State. The geneWe are further of opinion, that the plaintiff having ral rule that a voluntary transfer of personal property proved the mistake in the message as delivered, the is to be governed by the laws of the owner's domicile onus was upon the defendant to show how it occurred.

is not of universal application, but yields when the las Tyler v. W. U. Tel. Co., supra. If the error was caused and policy of the State where the property is by atmospheric disturbances, or a momentary dis located have prescribed a different rule of transfer placement of the wires, the defendant knew it, and from that of the State where the owner lives. People ought to show it. This defendant uudertook to do on v. Commissioners of Taxes, 23 N. Y. 225; People F. the trial in the court below. There was testimony Smith, 88 id. 576; Guillauder v. Howell, 35 id. 67; given tending to show that before and at the time the Ockerman v. Cross, 54 id. 29; Edgerly' v. Bush, 81 id. message in question was sent, trouble was experienced 199; Hibernia Nat. Bank v. Lacombe, 84 id. 367; Green in the transmission of dispatches, owing to the condi- v. Van Buskirk, 7 Wall. 139; Hervey v. R. I. Locomotion of the weather; that it was foggy and stormy. It tive Works, 93 U. S. 664. On March 1,1881, W., a resi. was further made to appear that in the telegraphic code dent of this State, made a general assignment for the the following lines and dots, when transmitted along benefit of creditors to plaintiff; at that time W owned the wire made the word “bail :"

personal property situate in two counties in Pennsyl.

vania. The assignment was recorded in one of those And that the word “bain" is expressed by the fol- counties on the 18th and in the other on the 19th of Jowing:

March. On the day of the execution of the assign

ment, but after its delivery, defeudants, creditors of There was also testimony tending to show that the w., and residents in this State, without actual notice operators at Stockton and San Francisco were com

of the assignment, commenced actions agaiust the aspetent, and that the one at San Francisco was es

signor iu Pennsylvania, aud by virtue of attachments pecially careful in the matter of this dispatch. The issued therein, the property situate in that State was latter testified that she took particular pains with the levied upon at the time the assignment was made; a message in question, “as is shown by the mark under statute in Pennsylvania regulating such assignment one of the cipher words—the last word-because it provided that an assignment of property situate in was an unusual word ' falun.' I asked Mr. Dixon to

that State made by a person not a resident therein repeat it, and I put a little mark,' +,' under it to show

may be recorded in any county where the property is that it was repeated. The other words, being ordi- situated, and shall take effect from its date, "provided nary words, I paid no attention to, because it is some

that no bona fide purchaser, mortgagor or creditor, thing very likely to be received in any message.'

having a lieu thereou before the recording in the same There was also given on behalf of the defendant county, and not having previous actual notice, shall further testimony tending to show that the error re

be affected or prejudiced.” In an action to restrain sulting in the change of the word “bail” to “bain"

defendants from further proceedings under the atwas caused by a break in the electric current, and tachment, held, that the defendant, on having acquired that this in turn was caused by atmospheric influences

valid liens on the property in Pennsylvauia prior to prevailing at the time, and of course, beyond the con

the recording of the assignment in that State, those trol of defendant. If such was the fact, the verdict

liens were saved from the operation of the assignment; should have been for the defendant. But it was a

that the laws of this State did not follow defeudants question of fact for the jury, uuder appropriate in

into Pennsylvania, and they had the same right to enstructions from the court. The court should have force payment of their claim out of their debtor's told the jury that the mistake in the message as de- property found there as a resident creditor had; that livered, being admitted, the presumption was that it

they could not be treated as tort feasors here, for acts occurred through the negligence of defendant; but lawful where they were committed, and that the acthat if they believed from the evidence that the mis

tion was not maintainable. Ockerman v. Cross, 54 N. take occurred through a cause or causes beyond de Y. 29; Bagley v. A. M. & C. R. Co., 84 Penn. St. 291, fendant's control, such as a break in the electric cur

distiuguished. Warner v. Joffrey. Opiniou by Eari, rent, produced by atmospheric influences, their ver- J. dict 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,

TRIAL- EXAMINATION OF WITNESS — PRIVILEGED and we must therefore remand the cause for a new

COMMUNICATION--PRACTICE.—(1) A party is not bound trial.

to interrupt the examination of a witness called by bis Judgment and order reversed, and cause remanded adversary in respect to a material matter, on a mere for a new trial.

suspicion that the witness may be debarred by his poMcKinstry and McKee, JJ., concur.

sition 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 NEW YORK COURT OF APPEALS ABSTRACT.

action upou a promissory note, wherein the question

was as to the consideration for the transfer by the perCONFLICT OF LAWS — ASSIGNMENT FOR BENEFIT OF son to whom it was executed, the latter was called as CREDITORS — TITLE TO PERSONAL PROPERTY- A gen- a witness for the defendants to prove the nature of the eral assignment for the benefit of creditors, exe- transfer, and after an attorney called as a witness by cuted as prescribed by the General Assignment Act plaintiff had testified to declarations made by the (ch.466, L.1877, as amended by ch.318, L.1878),takes effect transferee, tending to sustain plaintiff's claim, it apso far as property situate in this State is concerned, peared upon cross-examination that said witness was from the time of its delivery; all requirements subse- acting as counsel for the transferee at the time such quent to the delivery are directory merely and an declarations were made, and that they were made to omission to obey any of them does not avoid the assign- him as such; whereupon defendants moved to strike

out the testimony on the ground that the declarations obtaining a satisfaction-piece from S. of a certain were privileged communications, which motion was mortgage of $2,000, the defendant M. agreed to assign denied. Held, error; and this, although the testimony to defendant W. a mortgage of $5,000, to be held by of the witness on direct examivation, while it did not him in trust for the payment to plaintiff of $200 per disclose the fact, might have suggested a qucre as to annum, payable semi-annually during the life-time of the existence of the relationship of counsel and client. S. “for his support and maintenance.” Plaintiff, in But it would be too strict to hold that a party is bound consideration thereof, covenanted to support and to interrupt the examination of a witness in respect maintain S. “ as long as said $200 is paid annually as to a material matter on a mere suspicion that the wit- aforesaid." The satisfaction was procured, assignness may be debarred by his position from testifying. ment executed, and defendants made semi-annual payHe may, we think, await his opportunity on cross-ex- ments up to April 15, 1875. Plaintiff thereafter was amination, to bring out the facts, and if on such ex- ready and willing to receive S. into his house and supamination it appears that the witness is incompetent, port him there; this S. refused. In an action to remake his motion to have the testimony expunged from cover subsequent installments, held, that the contract the record. Hinckley v. N. Y. C. & H. R. R. Co., 56 must be construed as subject to the implied condition N. Y. 429. (2) It is clear that the witness was debarred of an assent on the part of S. to receive his support at from testifying to the declaration of Hill by the rule the hands of plaintiff; that such support was a condiwhich forbids an attorney from disclosing communi- tion precedent to any obligation to pay, and not havcations made to him by a client in the course of his ing been performed, plaintiff was not entitled to reprofessional employment. Bacon v. Frisbie, 80 N. Y. cover. The learued counsel for the respondent insists 394; Root v. Wright, 84 id. 72. Lovendy v. Hill. that to do so was the full measure of his duty, and in Opinion per Curiam.

aid of his position oites Pool v. Pool, 1 Hill, 580; Mc[Decided June 3, 1884.]

Killup v. McKillup, 8 Barb 552; Hawley v. Norton, 23

id. 225; Loomis v. Loomis, 35 id. 624; Iu Pool v. Pool EMINENT DOMAIN-FEDERAL GOVERNMENT-COMING

the plaintiff, an aged man, had conveyed to the defend. INTO STATE COURT.-While the Federal government,

ants bis house and other property upon their covenantas an independent sovereignty, has the power of con

ing to keep and sustain him in boarding and lodging, demning land within the States for its own public use

etc., and suitable attendance, and also to “keep and (Cooley Const. Law [5th ed.], 525; Kohl v. United

maintain his infant children in a manuer suitable for States, 91 U. S. 367), we see no reason to doubt that it

him to provide for them had he not conveyed away may lay aside its sovereignty, and as a petitioner en

his property.” One of the children left before he was ter the State courts and there accomplish the same

twenty-one years of age, and the father sued the deend through proceedings authorized by the State Leg

fendants because they did not keep and maintain the islature. If the State may delegate its power to a pri

child, and it was held they were only bound to provate corporation of another State, for the benefit of a

vide for the child as a member of their family. Mocanal located within its borders, as was held by this

Killup v. McKillup presented substantially the same court in the Matter of Peter Townsend, 39 N. Y. 171,

circumstances. A bond to “furnish good and suffiso it may to an independent political corporation

cient nursing, medical attendance, washing and lodgwhere the use is public and the convenience shared by

ing" to the father and his insance child, in consideraits own citizens. Gilmer v. Lime Point, 18 Cal. 229; Burt v. Merchants' Ins. Co., 106 Mass. 356. While pri

tion of the conveyance of real estate. The action was

by one who harbored and cared for the father and his vate property cannot be taken for public purposes

child. In Hawley v. Martin the bond expressly prowithout just compensation, this need not be given in

vided for the keeping and support of the plaintiffin the all cases concurrently in point of time with the actual

house of the defendant; and in all these cases the court exercise of the right of eminent domain. It is enough

decided as in Pool v. Pool, while in Loomis v. Loomis, if an adequate and certain remedy is provided wbereby

supra, a different doctrine was applied to the agreethe owner of such property may compel payment of

ment then before the court, and in an action by the his damages. Bloodgood v. M. & H. R. Co., 18 Wend.

beneficiary against the executor of the covenantor it 9; Lyon v. Jerome, 26 id. 485; People v. Hayden, 6 Hill,

was held that under an agreement for a good and suffi359; Rexford v. Knight, 11 N. Y. 308. This means reas

cient maintenance, she might choose her residence. It onable legal certainty. Chapman v. Yates, 54 N. Y. 146;

is unnecessary to inquire to what extent these cases Sage v. City of Brooklyn, 89 id. 189. Accordingly are to be followed, for they do not apply to any issue held, that as before any land had been taken under the

between these parties. Their facts are unlike those act entitled “An act granting to the United States the

before us. Here the beneficiary was not a party to the right to acquire the right of way necessary for the im

agreement, nor are there any findings showing that he provement of the Harlem river and Spuyten Duyvil

knew of, or assented to it. Whether he could sue for the creek for the construction of another channel from

non-performance of any duty under its provisions is a the north river to the East river through the Harlem

question which, although raised by the respondent's Kills, and ceding jurisdiction over the same (ch. 147, L.

coupsel, has no bearing upon the present controversy, 1876), as by the various amendments to said act (ch. 345,

and need not be considered. It is enough to say that L. 1879; ch. 65, L. 1880; ch. 61, L. 1881; chs. 377, 410, L.

as he left the plaintiff's house of his own volition, it 1882; ch. 214, L. 1883) certain and suitable provision is

the cases cited have any application, they would, upon made to compensate the owvers for lands taken, the

the plaintiff's construction of the agreement, furnish defect in the original act in this respect was no objec

ample protection to him in case S. should sue for the tion to proceedings instituted under it. Also, held, that

cost of support and maintenance during his voluntary the said act was not violative of the provision of the

absence. Tbe plaintiff's case comes within the princiState Constitution, article 3, section 16, providing that

ple which relieves a master from liability for not "no private or local bill * * shall embrace more

teaching an apprentice who refuses to be taught (Raythan one subject, and that shall be expressed in the ti

mond v. Minton, L. R., 1 Ex. 244), and cancels a contle." Matter of United States. Opinion by Danforth, J.

tract for personal services of a third person if at the [Decided June 3, 1884.]

time named, that person is unabie to perform. SpauldCONTRACT–SUPPORT-IMPLIED CONDITIOX-PRAO- ing v. Rosa, 71 N. Y. 40. The same rule must apply if TICE-CODE, $ 1207.-In 1873 the parties entered into the person to whom the service is to be rendered is an agreement by which, in consideration of plaintiff's | unwilling to receive it, as in the case first cited.

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Therefore as the plaintiff has not performed on his that it does to ordinary freight received by it for transpart, the consideration upon which he might be enti- portation, and in case of loss will be held to the same tled to the trust money fails, and he cannot enforce measure and character of liability to the owner of the its payment. (2) In an actio: for the recovery of cars so received for transportation as would attach in money only, and so necessarily triable by a jury (Code respect to any other property. (2) In this case the deCiv. Proc., $ 968), and if so tried an interlocutory judg- fendant failroad company's principal business was ment could not be given; if a jury is waived, and the switching cars for other railroad companies. Its tracks case tried by the court, and a proper case made out, were connected with those of the other railroads by a such a judgment may be rendered the same as if the transfer switch, and with mills, elevators and manaaction were originally triable by the court. Code, s factories in and around the city where its business was 1207; Murtha v. Curley, 90 N. Y. 372. Cornell v. Cor- transacted. The plaintiff corporation brought a car nell. Opinion by Danforth, J

loaded with freight to the city, and placed the same [Decided May 9, 1884.]

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 uploaded it was taken ILLINOIS SUPREME COURT ABSTRACT.* by the defendant, without orders from the plaintiff, to

a sugar refinery, to be loaded, and then switched to EMINENT DOMAIN-RAILROAD.-(1) Under the power

the transfer track for shipment. On the same day the of an incorporated railway company to condemn land

sugar refinery was burned, and also the car. Held, necessary for side tracks, turn-outs or switches, it has

that the defendaut was liable, as a common carrier, to no right to take land for the construction of an inde

the plaintiff for the value of the car so destroyed. pendent branch road to subserve only new private in

Peoria & Pekin Union R. Co. v. Chicago, R. I., etc., R. terests. (2) But it is no valid objection to the condem

Co. Opinion by Scott, J. nation of a strip of land for a switch or a side track of EVIDENCE-PAROL TO SHOW WHAT WRITING IS–PATa railway corporation, that the proposed track may ENT-RIGHTS OF SEVERAL OWNERS - SPECIFIC serve private uso, if in addition to serving such use it FORMANCE-PARTIES.-(1) The rule that the terms of is one also necessary for the successful and convenient a written contract must be shown by the writings operations of the main line of the railroad. (3) Where alone, and that oral testimony exhibiting the various a railway corporation is limited by the authorities of negotiations between the parties leading up to its an incorporated village or town to thirty feet in the consummation is to be excluded, applies only as becenter of a public street in which to locate its main tween the parties to written instruments, and those track, and it becomes necessary to construct a switch claiming under them. Strangers to a written instruor side track, it is no objection to the condemnation ment, when their rights are concerned, are at liberty of land for that purpose tbat it runs perpendicular to to show by parol evidence that the contract of the parthe main track, there not being room enough in the ties is different from what it purports to be on the face right of way along the street for the side track in addi- of the writing. 2 Pars. Cont. 556, 557 ; Krider v. Lafftion to its two main tracks. (4) To deny a petition of erty, 1 Whart. 303; Strader v. Lambeth, 7 B. Mon.589; a railway company for the condemnation of land for a Reynolds v. Magness, 2 Ired. L. 26; Edgerly v. Emerside track it should appear that the object thereby son, 23 N. H. 555. (2) Each of the several owners of scught is clearly an abuse of power, and a taking of letters patent, without the concurrence of the joint private property for an object not required for the con- owners, can lawfully exercise and use the patent prisvenient operation of the road. See Matter of B. & A. / ileges and license others to do so. Clum v. Brewer, 2 R. Co., 53 N. Y. 574; In re N. Y. C. R. Co. v. M. G. L. Curt. C. C. Rep. 506; Dunham v. Railroad Co., 7 Biss. Co., 63 id. 326; Chicago, R. I. & Pacific R. Co. v. Town 223; Vose v. Singer, 4 Allen, 226; Mathers v. Green, of Lake, 71 Ill. 333; Smith v. Chicago and Western In- L. R., 1 Ch. App. 29; Curtis on Patents, $$ 189, 191. diana R. Co., 105 id. 511; C. & P. R. Co. v. Speer, 56 (3) The general rule is that to a bill for the specific Penn. St. 325; In re N. Y. C. & H. R. R. Co., 77 N. Y. performance of a contract no persons are necessary 248. South Chicago, etc., R. Co. v. Dix. Opinion by parties except the parties to the contract itself. Fry Sheldon, J.

Spec. Per., $ 79; Pom. Spec. Per., $ 483, and cases cited; SETTLEMENT-VOLUNTARY-POWER OF REVOCATION.

Willard v. Taylor, 8 Wall. 557. Mr. Pomeroy says this -There is no rule that the want of a power of revoca

is the well-settled general doctrine in England, and tion in a voluntary settlement, or the want of advice

has been followed by some of the American decisions, as to the insertion of such a power, will afford ground

though the tendency of the latter decisious is toward in equity for the donor to set ide such a settlement,

the adoption of a more comprehensive rule. In secbut that the same is a circumstance, and a circum

tion 492 he lays it down tbat in general, when the venstance merely, to be taken into account in determin

dor is a trustee, his cestuis que trust need not be joined

as co-defendants. Manufacturing Co. v. Wire Fence ing upon the validity of the seitlement, and of more or less weight, according to the facts of each particular

Co. Opinion by Sheldon, C. J. See Toker v. Toker, 3 DeG. J. & S. 487; Hall v. MANDAMUS-COUNTY CLERK TAX DEED - PARTY Hall, L. R., 8 Ch. App. 437; Bill v. Cureton, 2 Mylne &

(1) A county clerk who Keen, 503; Petre v. Espinasse, id. 496; Kekewich v. has once exhibited a tax deed at the instance of the Manning, 1 DeG. M. & G. 176; Jenkins v. Pye, 12 Pet. holder of the certificate to purchase, upon evidence 241. In Eckert 7. Gridley, 104 Ill. 306, we held that a furnished by such holder, cannot subsequently be comvoluntary settlement upon a child could not be re- pelled by mandamus to execute to the same party voked. Finucan v. Kendig. Opinion by Sheldon, J. another tax deed under the same certificate of purCOMMON CARRIER-RAILWAY COMPANY--CARS

chase, the holder thereof having filed with the clerk ANOTHER COMPANY HAULED OVER ITS LINE.-(1) A

additional and more perfect evidence of his baving railway company engaged in the transportation of

complied with the law in respect to giving notice of the freights for hire as a common carrier is bound to trans

purchase, etc. (2) If however the county clerk himself port or haul upon its road the cars of any other rail

makes a mistake in executing a tax deed, whereby road company, when requested to do so, and will hold

it is rendered inoperative for the purpose for which it the same relation as a common carrier to such cars

was intended, he may be compelled by mandamus to

correct his mistake, and he may make the correction * To appear in 109 Illinois Reports.

without being coerced thereto by the court. Maxoy v.

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