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fancy or feeling of the court, but that the matter being one which cannot be determined by the application of definite and precise rules, it is to be acted upon in the exercise of a sound practical judgment, in view of all the relevant facts of the particular case, or to use a current expression, in view of the "whole situation." When then the propriety of an order granting a new trial for excessive damages comes before an appellate court for review the question is not precisely that presented to the trial court, as above indicated, but whether it clearly appears (for here, as elsewhere, error must appear affirmatively, and every presumption is against it) that the trial court abused its sound discretion; or as more fully stated, that it failed to exercise a sound practical judgment upon all the relevant facts before it.

Applying those views to the case in hand, we are forced to the conclusion that the order granting a new trial should be affirmed. We have no intention (especially as there is to be a new trial) of entering in this opinion into any detailed consideration of the testimony or its effect. But after a careful perusal of the settled case, and due consideration of the suggestions of counsel, we find ourselves utterly unable to say that the learned District judge erred in the exercise of his discretionary authority to grant or refuse a new trial. On the contrary, it seems to us that the reasons for his action, as set forth in his memorandum, such as the absence of actual malice, the apparent good faith of the reporter, the character of the charge, the want of allegations and of evidence of special damage, are of no inconsiderable weight.

It is to be remembered that in determining upon an application for a new trial on the ground of an excessive verdict, as on other grounds, the trial judge occupies a position of practical advantage over an appellate court, especially when, as in this instance, the plaintiff is one of his own principal witnesses. There is a certain atmosphere of the case and trial, well known to the profession, which cannot be put upon paper. Upon all these considerations we find ourselves unable to conclude that there was any failure on the part of the judge below to exercise the proper sound, practical judgment upon all the relevant facts of the case before him.

What is said in Wilcox v. Landbery, 30 Minn. 95, upon the point that an appellate court will not necessarily sustain an order granting a second or third new trial, because it has sustained one granting a first, although the facts may be substantially the same, has no application to this appeal. At the first of the two former trials of this case the verdict was not set aside on the ground of excessive damages. At the second trial the jury failed to agree. The third trial, being that upon which the order now before us was made, appears then to be the first upon which a new trial has been granted for excessive damages.

These conclusions would dispose of the case, but with reference to a future trial we observe, that as held in this case when it was here before (30 Minn. 41, 62), libels like that here charged are actionable per se, and neither proof of special damage or actual malice is necessary to the maintenance of an action therefor. The words complained of impute negligence to plaintiff in his profession as a physician.

the

The

rule is well settled that where defamatory words are falsely spoken or written of one in his profession, prejudice to him, and malice on the part of the defamer, are implied in law. Cooley Torts, 193, 196; Bigelow Torts, 38, 40, 46; Simmons v. Hoister, 13 Minn. 249 (Gil. 232); Folkard's Starkie Sland. & Lib., § 188; Ingram v. Lawson, 6 Bing. N. C. 212.

The order granting a new trial is

Affirmed.

NOTE. (1) Excessive Damages.-See 9 Am. Rep. 200; 4 id. 593; 8 id. 661; 33 Eng. R. 736; 30 id. 769; 20 Alb. L. J. 332.

Verdicts are set aside only when they are not supported by proof, or when they are so excessive as to indicate passion, prejudice, or an incorrect apprecia tion of the law applicable to the case. Ayliff v. Hardy's Exrs., 25 Ark. 49; Kelly v. McDonald, 39 id. 387; Texas & St. Louis R. Co. v. Eddy, 42 id. 527; Benson v. Chicago & Alton R. Co., 78 Mo. 504.

In Texas & P. Ry. Co. v. Lowry, 61 Texas, 149, it was held that when a bodily injury was sustained in consequence of the negligence of a railway company, which injury was of a permanent character, inflicting great bodily pain when it was received, and for a long time afterward, it was held that a verdict for $2,000 was not so excessive as to require a reversal. See also Texas and Pacific R. Co. v. McAtee, 61 Texas, 695.

In Van Winter v. Henry County, where through defendant's negligence plaintiff suffered a compound fracture of the left arm, and a partial dislocation of the elbow, impairing the use of the arm for life, and rendering it quite painful at certain seasons, held, that a verdict for $4,000 was not excessive. In Lombard v. C., R. I. & P. R. Co., 47 Iowa, 494, the verdict for a broken leg was reduced from $4,000 to $2,500, but in that case there was no permanent in jury. The leg was as sound and strong as it ever

was.

In an action brought by a brakeman, twenty-seven years of age and receiving wages of $60 per month, against a railroad company for damages caused by the negligence of the company, where the permanent disability is the loss of a leg below the knee, and where the plaintiff after his injury had his leg sawed off three times before the surgeon got it right, then was confined to his room over fifty days, and during the time had the lockjaw for twelve or fifteen days so severely as to be unconscious at times, and suffered every thing that a man could suffer and not die, and upon the first trial a verdict for $8,000 was rendered, and upon the second trial a verdict for $10,000, held, that the last verdict is not so excessive as to warrant the Supreme Court to set it aside and grant a new trial solely on the ground of excessive damages. Western, etc., R. Co. v. Moore, 31 Kaus. 197.

In Marshall v. St. Louis, etc., R. Co., 78 Mo. 610, in an action against a railroad company for carrying a female passenger beyond her station, the circumstances were such that the plaintiff was only entitled to recover for the loss of time and expense incurred in being taken past her station and back, and the jury were so instructed. The evidence showed that she lost two or three hours' time, and paid $1.50 for a re turning conveyance. There was a verdict for $1,000, reduced by remittitur to $750, and judgment accordingly. Held, excessive, and judgment reversed.

(2) Libel.-See 6 Am. Rep. 105; 18 id. 380; 22 id. 303; 25 id. 755; 30 id. 367; 31 id. 757; 58 How. 471.

In White v. Cheesbro (S. C., 16 Week. Dig. 186) the defendant charged that plaintiff, who was a merchant, was a dishonest man; that he had on various occasion, for a period of years filled defendant's can, which held but five gallons, with kerosene oil, and had charged him with six gallons, and that it was done at the plaintiff's store. Held, actionable per se.

In an action for slander defendant cannot give in evidence specific acts of dishonesty on the part of the plaintiff without having set them up in his answer. White v. Cheesbro, 16 Week. Dig. 186.

He may deny and justify. See 2 Am. Rep. 66; 29 Eng. R. 313; 17 Barb. 649; 9 How. Pr. 282.

So in assault and battery. 9 How. Pr. 289.
A justification being pleaded must be established as

broad as the charge made. White v. Cheesbro, 16 Week. Dig. 186.

– implied malice. See 5 Am. Rep. 195; 6 id. 105.

DIVERSION OF WATERCOURSE-PARTIES IN DIFFERENT STATES.

MASSACHUSETTS SUPREME JUDICIAL COURT.

MAURELI Co. v. CITY OF WORCESTER.

The diversion of the waters of a natural stream in Massachusetts, and preventing the same from coming to plaintiff's mill in Rhode Island, is a tort for which an action may be maintained in Massachusetts.

In such an action, so far as the water is returned, there is no wrong to plaintiff; but if there were the return would go in mitigation of damages.

THIS

THIS was an action of tort to recover damages for the diversion of the waters of Tatnuck brook, to the injury of the plaintiff. It appeared in evidence at the trial before Judge Barker and a jury, that the plaintiff's mill is situated on the Blackstone river in the State of Rhode Island, and that in 1876 the defendant pumped water from Tatnuck brook into a reservoir for a water supply, and thereby diminished the flow of water at the plaintiff's mill. The defendant asked the court to instruct the jury that inasmuch as the plaintiff is not shown to have any interest in any reservoir or in the waters situated within this State, the diversion of the waters of a natural stream in this State and preventing the same coming to the plaintiff's mill, situated in Rhode Island, is not an act for which the plaintiff can maintain an action in this Commonwealth. The court refused so to rule. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions.

W. S. B. Hopkins, for plaintiff.

Frank P. Goulding, for defendant.

HOLMES, J. This was an action of tort. It appeared at the trial that the plaintiff was the owner of a mill in Rhode Island upon the Blackstone river, and there was evidence that the defendant had withdrawn enough of the waters of Tatnuck brook, a tributary of that river in Massachusetts, to materially affect the operation of the plaintiff's mill. The main question argued before us is raised by the refusal of a ruling requested that "the diversion of the waters of a natural stream in this State, and preventing the same from coming to the plaintiff's mill, situated in Rhode Island, is not a tort for which the plaintiff can recover in the courts of the Commonwealth."

The defendant's counsel contend, in the first place, that such rights as the plaintiff claims cannot extend beyond the Rhode Island line, and went the length of maintaining that servitude cannot be created in our State in favor of lands in another.

We are unable to agree to this proposition from either principle or authority. Every decision and dictum that we have found bearing on the precise point is the other way. Slack v. Walcott, 3 Mason, 508, 516; Thayer v. Brooks, 17 Ohio, 489; Stillman v. White Rock Manuf. Co., 3 Wood & M. 538; Foot v. Edwards, 3 Blatchf. 310; 14 How. 80; Wall., Jr., 274.

We think that the cases which recognize civil and even criminal liability for flowing land in one State by reason of a dam in another are hardly less pertinent. Howard v. Ingersoll, 17 Ala. 780; 39 Me. 246; 17 Ill. 534; 54 Texas, 623; 16 N. H. 357.

The defendant admits these cases to be law, and tries to distinguish them. But we cannot assent to the distinction between discharging and withholding

water. The consequence in one case is positive, in the other negative; but in each it is the consequence of an act done outside of the jurisdiction where harm occurs, and the consequence is as direct in the latter case as in the former. The right infringed in the former case is called absolute ownership, in the latter easement; but the laws of Rhode Island which make a man owner of land there have no more power to diminish freedom of action in Massachusetts than any other of its laws. A concurrence of the laws of both States is as necessary in that case as in the one at bar to create a liability which could be enforced in either State consistent with principle. Such a concurrence presents no technical difficulties, and if the substantive end to be attained is a proper one it will be recognized and acted on here, as we have no doubt it would be in Rhode Island if the position of the parties were reversed.

Of course the laws of Rhode Island cannot subject Massachusetts lands to servitude, and apart from any constitutional considerations, if there are any, which we do not mean to intimate. Massachusetts might prohibit the creating of such servitude. So it might authorize any acts to be done within its limits, however injurious to lands or persons outside them. But it does not do either. It has no more objection to a citizen of Rhode Island owning an easement as incident to his ownership of land in that State than it has to his owning it in gross or to his purchasing lands here in fee. Questions might be conceived as to the transfer of such easements, but they do not arise here. So far as their creation is concerned, the law of Massachusetts governs whether the mode of creation be by deed or prescription, or whether the right be one which is regarded as materially arising out of the relation between the two estates; being created by the laws of Rhode Island, by permission of that of Massachusetts, lays hold of them and attaches to them in such way as it is applicable to lands there, Massachusetts being secured against any thing contrary to its views of policy by the common traditions of the two States, and by the power over its own territory which it holds in re

serve.

It was also contended for the defendant that the action could only be brought in Rhode Island. This objection is purely technical. The reasons which once made the venue important have long disappeared, and we see no reason for any greater strictness than is absolutely required by the statutes and precedents. If the plaintiff's mill was in any other county of this State an action for damages would be rightly brought in Worcester, not by public statutes only, but by the common law. As between two States, both of which recognize the right if the rule is to vary at all, it should be on the side of greater liberality to prevent a failure of justice, such as would be likely to happen in the present case if this action were not maintained. The weight of judicial opinion is altogether in favor of allowing an action to be maintained where the water was withdrawn. Most of the cases where both the action and the consequences complained of were outside the State in which the action was brought are not opposed to our conclusion, and we are not called upon to decide between Lord Mansfield in Mostyn v. Fabrizus,and Lord Kenyon in another case. The American cases have generally followed the latter.

The plaintiff asked the court to rule that the defendant was liable for damages measured by the loss of power which the whole amount of water pumped by the defendants would have made, although the defendant had introduced evidence that a certain percentage of it was returned to the river. This ruling was refused, and rightly. So far as the water returned, its withdrawal was no wrong to the plaintiff; and even if it

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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.

TELEGRAPH COMPANIES-LIMITATION OF LIABILITY-PRESUMPTION OF NEGLIGENCE.

SUPREME COURT OF CALIFORNIA. 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

DE

Court of San Joaquin county.

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

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was

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' changed to the word "bain." By the private cipher code of McNear, used by the plaintiff in the message, the word "bail" means 66 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 tons 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 defendant 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.

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 sending 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."

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 dispatch was made by the plaintiff at the time he deliv ered it to the defendant, for which reason, and be cause, 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 abbrevia tions 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

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."

And

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. 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; W. 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

1

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

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

And that the word "bain" is expressed by the fol- counties on the 18th and in the other on the 19th of lowing:

66

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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 resulting in the change of the word "bail" to "bain " 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 told 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 question, 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.

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,

J.

[Decided June 3, 1884.

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-examination 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 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

NEW YORK COURT OF APPEALS ABSTRACT.

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