to rest upon the contract of the sender or to result from a breach of duty, the limitation upon the amount of damages to be recoverd being reasonable, ❘ the plaintiff has no standing to maintain this action unless he is the real principal in the transaction, and then only to the extent of the amount paid for the transmission of the message.

We find no authority binding upon this court which lays down any different doctrine than that of the leading Massachusetts case, of which our Court of Appeals says that "the reasons are clearly and satisfactorily stated for the existence of the rule that telegraph companies are not, unless they expressly contract, held to warrant or insure the accurate transmission or prompt delivery of messages, and are only liable for negligence," which clearly refers to negligence going to the essence of the contract or duty, and not to mere errors in transmission, where the company has stipulated that it will not be liable for such errors except under the conditions which it names and which the courts have held to be reasonable regulations. The right to make a reasonable regulation is a right on the part of a public or quasi-| public corporation to refuse to perform a duty except upon compliance with such regulations, and while the defendant might waive such regulations and accept the duty of transmitting messages under its common law liabilities, where it provides blanks and accepts messages only under such regulations, it owes no duty higher than that provided in its regulations.

The judgment and order appealed from should be reversed, with costs.

HIRSCHBERG, P. J., and JENKS, J., concurred.

66

GAYNOR, J. (dissenting).-The plaintiffs were the receivers of the message. The contract limiting the defendant's liability was with the sender, not with the receivers, of the message. The receivers are not bound by it. It does not even purport to limit the liability of the company to them. This action is not based on it, but on a negligent breach of the duty which the defendant owed to the plaintiffs to deliver to them the message in the words in which it received it from the sender. The defendant is a public service corporation, exercises a sort of public office " (New Jersey Nav. Co. v. Merchants' Bank, 6 How., p. 382), and has public duties to perform. This is a principle now thoroughly understood. It does not seem plain to many who have considered the matter how, on principle, a public service corporation may be allowed to evade liability for a neglect of its public duty, by which an individual is damaged by an agree ment of that effect, any more than any public officer may do the like. However far the decisions of some States may have gone in that direction, inadvertently or otherwise, no such question confronts us in this case, for the defendant had no such agreement with

the plaintiffs. Its liability in this case is placed by the complaint on a negligent breach of its duty to the plaintiffs, and on that basis they had the right to recover. The learned trial judge, therefore, committed no error in refusing to rule that the contract between the defendant and the sender bound the plaintiffs. In the contrariety of decision in this country the principle of duty stated in the foregoing is at all events established by the great weight of authority, and after the elucidation of it which we have had from statesmen and publicists in recent years, it is now plainer than ever. The law is a progressive science. A collection here of the principal decisions, in favor of the foregoing may not be attributed to the overgrown habit of citation in a case so important to every one as this is: De Rutte v. N. Y. Tel. Co., 1 Daly, 547; Rose v. U. S. Tel. Co., 3 Abb. Pr. R., N. S. 408; Elsey v. Postal T. Co., 20 St. Rep. 97; Wolfskehl v. W. U. Tel. Co., 46 Hun, 542; Ellwood v. W. U. Tel. Co., 45 N. Y. 549; Breese v. U. S. Tel. Co., 48 N. Y. 132; Lowery v. W. U. Tel. Co., 60 N. Y. 198; Pearsall v. W. U. Tel. Co., 124 N. Y. 256; Curtin v. W. U. Tel. Co., 16 Misc. 347; N. Y. & Nash. P. Tel. Co. v. Dryburg, 35 Penn. St. 298; Tobin v. Tel. Co., 146 Penn. St. 375; Harris v. W. U. Tel. Co., 9 Phil. 88; Bartlett v. W. U. Tel. Co., 62 Me. 209; W. U. Tel. Co. v. Du Bois, 128 Ill. 248; Webbe v. W. U. Tel. Co., 169 Ill. 610; Greene v. W. U. Tel. Co., 136 N. C. 489; McCord v. W. U. Tel. Co., 39 Minn. 181; Smith v. W. U. Tel. Co., 83 Ky. 104; Tel. Co. v. Longwell, 5 N. Mex. 308; Shingleur v. Tel. Co., 72 Miss. 1030; Becker v. W. U. Tel. Co., 11 Neb. 87; Ferrero v. W. U. Tel. Co., 35 L. R. G. 548; W. U. Tel. Co. v. Richardson, 6 Cent. Rep. 565.

Where there is no contract limiting the company's liability it is liable for the full amount of damages caused by any breach of its public duty (or negligence, as some call it) to either the sender or receiver-unless it be the law that it is under no such duty. If telegraph companies be under no such duty to receivers of messages, then we do not need to bother our heads about the contract limiting this defendant's liability which it made with the sender in this case-it is wholly irrelevant. But if they are under such a duty to receivers of messages, i. e., to use reasonable care to deliver to them messages in the words in which they are received from senders, then the plaintiffs in this case are entitled to recover all the damages they have sustained by the breach of such duty; for if the sender was capable of limiting by contract with the company the amount of the damages these plaintiffs would be entitled to recover (a thing by no means to be admitted), suffices that the sender made no such contract. (the sender) only contracted that its damage should be limited to the amount paid by it to the company to transmit the message, unless it paid an additional sum to have the message repeated.

it

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Moreover, the sender could not be damaged whether the message went right or wrong, and as it therefore had no interest to induce it to pay for a repetition there was no consideration for any contract by it. How can the neglect of a sender to pay for a repetition in such a case be the basis of a contract by the sender limiting the duty and liability of the company to the receiver?

Telegraph companies being under a public duty (i. e., a duty arising out of the public service which they are licensed or incorporated by government to perform) to receivers of messages, senders of messages cannot by contract lessen or do away with that duty. They may only do so in respect of the duty due to themselves. The sender of a telegraph message is in no sense the agent of the receiver. There may be no accord between them; they may even be in hostility to each other, and the message may be adverse instead of friendly. The rules between consignor and consignee, shipper and purchaser, do not apply. The decisions are agreed that the law of common carrier does not apply to telegraph companies. There is no analogy on which to apply it.

The objection that gross negligence of the defendant was not established by the evidence is immaterial. The complaint alleged, and the charge of the learned trial judge made a verdict depend upon, gross negli. gence, it is true. But there is no rule requiring proof of gross negligence in the transmission of telegraphic messages. Some decisions are to the effect that an agreement limiting the liability of a telegraph company (like that with the sender in this case) does not cover a case of gross negligence, which is a very different thing. Breese v. W. U. Tel. Co., 48 N. Y., p. 141; Kiley v. W. U. Tel. Co., 109 N. Y., p. 236; Pearsall v. W. U. Tel. Co., 124 N. Y. 256. It only sets a limit on the power of such companies, the same as of common carriers, to limit their liability by agreement. The courts quite generally say that they are not able to define gross negligence, or distinguish it from ordinary negligence, but they leave it to juries to do so, although juries must find the task just as impossible as the courts. Will v. Postal Tel. Co., 3 App. Div. 22; Rieser v. Met. Ex. Co., 45 N. Y. 632; N. Y. C. R. Co. v. Lockwood, 17 Wall. 357; Steamboat v. King, 16 How. 470; Milwaukee & St. P. R. R. v. Arms, 91 U. S. 489; Hart v. W. U. Tel. Co., 66 Cal. 579; Stover v. Gowan, 18 Me. 177; Meek v. Penn. Co., 38 Ohio, 632. But it is not necessary to go into all this, or do more than mention it, for there being no agreement of limitation of liability in this case which affects the plaintiffs, it is not necessary for us to try to set up a standard and definition of gross negligence and consider whether the evidence reached it.

It suffices to mention the leading and typical case which is contrary to the foregoing (Ellis v. Amer. T. Co., 95 Mass. 226) in that it holds that the right

of a receiver of a telegraphic message to damages against the telegraph company is derived from, or is incidental to or dependent upon, the contract between the sender and the company, instead of the public duty of the company. The decision therein and in the cases of that class is not the law of this State. The distinction or line of cleavage between the cases is that some would rest the liability of telegraph companies on breach of contract only, disregarding the public duty they owe independently of any contract, and which is made the basis of liability by the opposing set of cases.

The judgment should be affirmed.
HOOKER, J., concurred.

A certificate of birth, declared by section 13 of the act of 1888 (P. L. 1888, p. 52), to be entitled to be received in evidence to prove the facts therein contained, was placed of record with the Medical Superintendent of the Bureau of Vital Statistics. The certificate was made by the physician present at the birth of the child, and, as required by said statute, among other things set forth, as far as the facts could be ascertained by him, the date and place of birth of the child, the name of each of the parents, the maiden name of the mother and the name of the child. In making the certificate the physician was imposed upon by the false statements of the mother as to the paternity of the child, and certified, contrary to the fact, that the complainant was the father of the child.

Held, that a court of equity has jurisdiction (1) to cancel such false certificate, or so much thereof as relates to, and charges upon the complainant, the paternity of the child; (2) to require the Medical Superintendent of the Bureau of Vital Statistics to endorse the fact of the cancellation upon the record; (3) to enjoin the use of the original certificate, or copies thereof, as evidence; and (4) to enjoin the mother and the child from claiming for said child, by virtue of said certificate, the status of a lawfully begotten child of the complainant.

Principles on which equitable jurisdiction is entertained in cases of this nature discussed.

Vanderbilt v. Mitchell et al., 63 Atl. 1107, re

versed.

On appeal from a decree of the Court of Chancery, advised by Vice-Chancellor Garrison, whose opinion is reported in 63 Atl. Rep. 1107.

Messrs. McDermott & Enright, for the complainant-appellant; Mr. LeRoy A. Gibby and Mr. Harry V. Osborne, for the defendants-respondents.

The bill in this case is filed by John Vanderbilt against Myra L. J. Vanderbilt, his wife; William Godfrey Vanderbilt, an infant, appearing herein by guardian; and Henry Mitchell, as Medical Superintendent of the Bureau of Vital Statistics of the State of New Jersey.

The complainant charges that he is the husband of the defendant, Myra L. J. Vanderbilt; that they were married in this State in February, 1901, and then were, and are now, residents of this State; that they lived together, as man and wife, for two months after the marriage, and no longer; that from September, 1901, to July, 1903, the wife and a third party named lived together in adultery at a place designated in the bill, and that during said period complainant had no matrimonial access to his wife; that as a result of the adulterous intercourse there was born to the said wife, in the State of New Jersey, on or about the 20th day of October, 1903, a male child, by her named William Godfrey Vanderbilt, which infant is one of the defendants herein; that the complainant is not the father of the child, but that the infant is an adulterine bastard.

The bill charges that the defendant, Myra L. J. Vanderbilt, upon the birth of said infant, falsely stated to the attending physician that the complainant was the father of the child, and that the child was the lawful issue of said marriage between her self and the complainant; that she made these false statements to induce the physician to insert them in the birth certificate, which the physician did, transmitting the certificate to the bureau of vital statistics, where it was duly filed and recorded.

The further allegation is that the defendant, Myra L. J. Vanderbilt, by ex parte statements, created a public record false in fact, but evidential "in any court of this State to prove" that the complainant is the father of the infant defendant; that, under and by virtue of this fraudulent record, both the mother, and the child through its mother, assert and seek to maintain for the said child all the rights of a legitimate son of the complainant, and to enforce all the liability of the complainant to the said infant, as if he were the lawfully begotten son of the complainant.

ceives an income during the lifetime of his nephew and his niece, and at the decease of both the nephew and the niece, under the provisions of the existing trust, as stated in the bill, the corpus of the estate is to be distributed to certain persons, in which distribution the complainant, if alive at the time, or otherwise his lawful heirs or devisees, would share. The allegation is that the complainant is sick, infirm and stricken with a fatal illness, and that it is the purpose of the defendants, the wife and the infant, to use this record, false in fact, after the death of the complainant and loss of testimony, to enable the infant to assert his claims to property as the lawful heir of the complainant.

The relief sought is the cancellation of this fraudulent record and the destruction of its evidential character as to the paternity of the infant; in effect, a decree of nullity as to this status of parentage thus prima facie created and fraudulently recorded against the complainant. The complainant seeks a permanent injunction restraining both the mother and the child from claiming, under this certificate, for the said child, the status, name, property or privilege of a lawfully begotten child of the complainant.

An injunction is also prayed for against the issuing, by the State Medical Superintendent, of copies of this fraudulent record, and against Myra L. J. Vanderbilt and William Godfrey Vanderbilt from using or offering in evidence the record, or certified copies thereof, or in any way availing themselves of its evidential character.

The court below sustained a demurrer to the bill, on the ground that the case did not fall within any recognized head of equity jurisprudence, that no property right is shown to be involved, and that a court of equity could not take cognizance of personal rights or redress personal wrongs, not affecting property.

The opinion of the court was delivered by DILL, J. No one of the allegations of the bill of complaint presents an exception to the general rule that the facts alleged must be regarded as admitted under a demurrer, as must all the facts which can be implied by a reasonable and fair intendment.

and which, unless attacked by competent evidence, becomes conclusive to prove the facts therein recorded.

As we view the gravamen of the bill, the complainant does not seek a decree dissolving any existing valid status, thereby altering the actual relation of the parties, but a judicial determination of the matter of the alleged status of paternity prima facie created by this certificate, to determine that such alleged status does not exist and to give adequate relief.

In other words, the theory upon which the equity of the bill rests is not to establish a status, or, on the other hand, to disestablish a status, except for the special object of determining whether the information given to the physician by the wife was fraudulent, and whether thereupon the certificate itself, so far as it imputes to the complainant the paternity of the child, was fraudulent.

The relief sought is a decree expunging from the public records of this State, on the ground of fraud, the certificate of birth, or so much thereof as relates to and charges upon the complainant the paternity of the child, with an injunction against all parties who might issue copies or use such copies or the original certificate as evidence of such paternity.

The character of the recorded certificate, by whom prepared and filed, and its force and effect as evidence are fixed by statute (P. L., 1888, p. 52. See also P. L., 1900, p. 370, ch. 150, §§ 28, 29).

The act of 1888, requiring the filing of certificates of birth, makes it the duty of the attending physician within thirty days after a birth to make and cause to be transmitted to the Superintendent of the Bureau of Vital Statistics a certificate thereof, which certificate shall set forth particularly, as far as the facts can be obtained by the physician, among other things, the date and place of birth, the name of each of the parents, the maiden name of the mother, the name of the child, and the name of the attending physician; and by section 13 of this act it is provided that "any such original certificate, or any copy thereof certified to be a true copy under the hand of said medical superintendent, shall be received in evidence in any court of this state to prove the facts therein contained."

It is important to note that the Legislature evidently had not in mind the possibility that this statutory record might be made an instrument to effectuate a fraud. Section 11 of the act of 1888 (P. L. 1888, p. 59) provides that any minister of the gospel, magistrate, physician, midwife or other person, who shall knowingly make any false certificate of marriage, birth or death, shall be deemed guilty of a misdemeanor; but there is an absence of statutory provision for the correction, modification or annulment of the record in case either of fraud or mistake.

As to the force and effect of the certificate, whether it is an adjudication by the physician of the facts which it recites, or whether it is a mere statement by such physician of facts which have been recited to him, is unnecessary for us to determine. If it be an adjudication, then, so far as the determination of the father of the child is concerned, it was obtained by a false representation made to the officer by the mother. If, on the other hand, it is a mere recital by the physician of a statement made to him by the mother, then that false statement has, by force of the statute, become spread upon the record of the State as the truth.

In either event, the complainant has been fraudulently recorded as the father of this child, and the recorded statement is evidential against him in all matters where the question of the paternity of the child is involved. In an action to compel him to support the child, or an action for necessaries furnished to the child, a certified copy of this record would be prima facie evidence that would tend to establish his liability, not only in this State, but in other jurisdictions as well. Speaking generally, this certificate is also evidence upon the question of who shall inherit an individual's estate, a question of vital importance to every man, having also a direct bearing upon the possible issue of a second marriage should he desire to contract one.

But with this topic we deal later.

Upon the question of equity jurisdiction it may be said that the jurisdiction of a court of equity to cancel, annual and set aside judgments on the ground of fraud, as well as certificates and determinations of public officers charged with judicial or executive fun tions, is settled.

The principle is well stated in Johnson v. Towsley, 13 Wall. (U. S.) 72, as follows:

"There has always existed in the courts of equity the power in certain classes of cases to inquire into and correct mistakes, injustice and wrong, in both judicial and executive action, however solemn the form which the result of that action may assume. when it invades private rights; and by virtue of this power the final judgments of courts of law have been annulled or modified, and patents and other important instruments issuing from the crown, or other executive branch of the government, have been corrected or declared void or other relief granted."

It was held in Garland v. Wynn, 20 How. (U. S.) 6, that courts of equity have power to review a contested claim to a right of entry to land under the pre-emption laws and to set aside the decisions of the register and receiver, confirmed by the commissioner in a case where they have been imposed upon by false swearing.

Jurisdiction in equity was also entertained to set aside an adjudication of a register authorizing an entry upon land on proof" showing that the entry

was obtained by fraud and the imposition of false testimony on those officers, as to settlement and cultivation." Lytle v. State of Arkansas, 22 How. (U. S.) 193. See, also, Dringer v. Receiver of Erie Railway, 15 Stew. (42 N. J. Eq.) 573; Kirkpatrick v. Corning, 13 Stew. (40 N. J. Eq.) 241.

Where a public record is pronounced fraudulent the relief is not confined to an injunction forbidding its use, but the decree may direct a cancellation of the record upon the face thereof. Fenton v. Way, 44 Iowa, 438; Jones v. Porter, 59 Miss. 628; Randozzo v. Roppolo, post.

An officer making or having in his possession the record may be made a party to a suit to set it aside, although he is not charged with any fraud, and is faithfully performing his public duties, and may be enjoined by the decree.

In McClurg v. Terry, 6 C. E. Green (21 N. J. Eq.), 225, the complainant sought a decree declaring that there was no marriage. The justice of the peace "meditated returning a certificate of the marriage to be recorded before the proper officer." The bill sought not only "to have the marriage declared a nullity,” but also “to restrain the justice from certifying it for record." (P. 227.)

It may be conceded that the public officer has faithfully performed his public duties and yet the certificate or determination or patent or judgment may

the cancellation of an obligation for the payment of a specified sum of money, and has not the power to compel the cancellation of an instrument, by fraud made a public record, which unjustly places upon the complainant the burden of a prima facie status of paternity and exposes him to the liability to support and maintain the infant.

The complainant is entitled to be relieved of the fictitious status of father so far as it is prima facie created by this certificate and which may reasonably be presumed to impose burdens upon him, both present and future. To prevent the injustice of his being forced to pay unfounded claims out of property either acquired or to be acquired, and to obviate the necessity, on the part of the complainant or his heirs, of meeting from time to time, in various suits and proceedings, this same issue, viz., the validity and evidential force of this certificate, equity interferes in presenti, on the doctrine of quia timet, that at some time in the future, after the death or departure of witnesses or other loss of evidence, the party or his privies may be menaced by the outstanding instrument.

The effect of a decree of nullity in this case, when entered upon the record, would be notice to all the world that this public record was fraudulent and was not entitled to be received in evidence in any court of this State to prove the facts therein con

parties.

The jurisdiction of the Court of Chancery in cases of fraud is as broad and far-reaching as the forms, the devices, and the ramifications of fraud can extend, and no public record will be allowed to stand as evidential in the face of facts showing in a direct proceeding in a court of equity that the certificate is false, conceived in fraud and with deliberate intent to use it in the future to wrongfully establish the paternity of a child, create a liability for maintenance and support and rob the lawful heirs of a decedent of their inheritance.

If the court has jurisdiction to set aside adjudications of judicial officers on the ground of fraud, it necessarily follows that a public record, the essential facts of which are obtained by ex parte statements, without the sanction of an oath and prepared by an officer whether performing a ministerial or judicial function, may be annulled, and rendered innocuous by a decree of a court of chancery, especially where private rights are invaded and where the forms of law are used to perpetrate a fraud, establish an unfounded claim or injuriously affect or threaten future vested or contingent estates.

A well recognized jurisdiction of a court of equity is to compel the surrender and cancellation of instruments, such as notes, where they have been procured by fraud. It cannot be that a court of equity has jurisdiction, on the ground of fraud, to compel

States under the Federal Constitution.

The question in this case is not whether the Court of Chancery would have power, upon a bill properly framed, to determine that the complainant was not the father of the child, so as to preclude forever a trial of that question. The issue here is narrower, and the effect of a decree cancelling the birth certificate, finding that the statements of the wife to the physician that the complainant was the father of the child were false, would not forever preclude a trial of the question of paternity. The effect of the decree would be to destroy the evidential character of this certificate, so that no one would be entitled thereafter to use it as evidence upon such issue.

The equity, so far as we are now discussing it, stops with the destruction of the fraudulent piece of evidence and with an injunction against its use.

In this State, in the leading case of Carris v. Carris, 9 C. E. Green (24 N. J. Eq.), 516, the Court of Chancery is declared to have inherent jurisdiction to annul the status of marriage on the ground of fraud, entirely independent of the statute of New Jersey which regulates the subject of marriage and divorce. The same principle was followed by Chancellor Zabriskie in McClurg v. Terry, supra, by ViceChancellor Pitney in Rooney v. Rooney, 9 Dick. Chan. (54 N. J. Eq.) 231, and by the present Chan