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U. S. Rep.]

PASSMORE V. WESTERN UNION TELEGRAPH CO.

wrong, or for the gross negligence which, if it does not intend to occasion injury, is reckless of consequences, and transcends the bonds of right with full knowledge that mischief may ensue. Nor, as I am inclined to think, will ány stipulation against liability be valid which has the pecuniary interest of the corporation as its sole object, and takes a safeguard from the public without giving anything in return. But a rule, which, in marking out the path plain and easily accessible, as that in which the company guarantees that every one shall be secure, declares that if any man prefers to walk outside of it, they will accompany him, will do their best to secure and protect him, but will not be insurers, will not consent to be responsible for accidents arising from fortuitous and unexpected causes, or even from a want of care and watchfulness on the part of their agents, may be a reasonable rule, and as such, upheld by the courts.

Applying this test to the case in hand, does the evidence disclose any sufficient ground for overruling a defence which is prima facie valid? The burden of proof is on the plaintiff. It is for him to show in what respect a regulation which he tacitly accepted, is so far hostile to the interest of the community, or of that portion of it which uses telegraphy as a means of communication, that the law should not suffer it to stand. Unless this is so clear as to be legally indisputable, the judiciary should obviously refrain from interfering with the contract as framed by the parties, and refer the subject to the legislature, who can at any time regulate the whole by statute.

We are fully aware of the importance of the question, and have no desire to relax the just measure of accountability in cases of this descrip tion. Telegraphy, like the other powerful instruments which science has placed at the disposal of man, is capable of being a source of injury instead of benefit. That the intelligence which it conveys is prompt, will serve no good purpose, if mistakes occur during the process of transmission. The difficulty of avoiding them is, notwithstanding, greater than might at first appear. The function of the telegraph differs from that of the post-office in this, that while the latter is not concerned with the contents of the missive, and merely agrees to forward it to its address, the former undertakes the much more difficult task of transcribing a message written according to one method of notation, in characters which are entirely different, with all the liability to error necessarily incident to such a process. Nor is this all. The telegraph

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operator is separated by a distance of many miles from the paper on which he writes, so that his eye cannot discern and correct the mistakes committed by his hand. It was also contended during the argument, that the electric fluid which is used as the medium of communication is liable to perturbations arising from thunder-storms, and other natural causes. It is, therefore, obvious, that entire accuracy cannot always be obtained by the greatest care, and that the only method of avoiding error is to compare the copy with the original, or in other words, that the operator to whom the message is sent should telegraph it back to the station whence it came.

So far the inquiry is plain; but here a question of some difficulty presents itself. Should every message be repeated, or only those which are of sufficient importance to make such a precaution requisite. In answering this question it must be remembered that the repetition of a message necessarily involves delay and expense. The mail may transmit any number of letters simultaneously, but a telegram has exclusive possession of the wires during its passage over the line. While one message is repeated, others are delayed, which at times may be of serious consequence. There is, moreover, an increase of cost, which, though trivial in each instance, would be formidable in the aggregate, and necessarily augment the rate of charging in a ratio which has been roughly calculated at one-half. Such must be the result, if every one who wishes to engage rooms at an hotel or put a question of friendly interest, must submit to the expense and possible delay of repetition.

On the other hand, the convenience of the opposite course is not less manifest. Instead of passing every message twice over the line, those only are to be repeated which from their importance demand peculiar care. And as the company cannot know what telegrams fall within this category, the question is referred to the person chiefly interested. Obviously he who sends a communication is best qualified to judge whether it should be returned for correction. If he asks the company to repeat the message, and they fail to comply, they will clearly be answerable for any injury that may result from the omission. If he does not make such a request he may well be taken to have acquiesced in the conditions which they prescribe, and at all events cannot object to the want of a precaution he has virtually waived. It is not a just ground of complaint that the power to choose is coupled with an obligation to pay an additional sum to cover the cost of repetition. If it were not, the

U. S. Rep.]

PASSMORE V. WESTERN UNION TELEGRAPH Co.-ITEMS.

company would in all probability be called on to repeat every message, with the inevitable effect of putting the public to an increased expense, without any corresponding gain.

We are, therefore, inclined to think that the regulation in question, or at least so much of it as has been considered in this opinion, is well calculated to reconcile the economy and despatch which the mass of the community principally desire, with the security against accident which each individual is entitled to demand. But we limit ourselves to saying that it is not so far contrary to private interest or the public good, as to justify a court of justice in pronounc ing it invalid.

We have not arrived at this conclusion without a just diffidence arising from the novelty of the subject and the want of any controlling authority in this State. But it is satisfactory to know that the principles set forth above are sustained by the judgment of the Supreme Court of Massachusetts, in Ellis v. The Telegraph Co., 13 Allen, 226; and also by that rendered in Camp v. The Telegraph Co., 2 Metcalf, Ky., 164.

We do not think it requisite to notice the second point, beyond saying that it presents a nice question, about which the books do not agree: See Harris's Case, Law Reports, 7 Chan. Appeals, 587; and the British and American Telegraph Co. v. Colson, Law Reports, 6 Ex. 108. The fair deduction from the authorities seems to be, that although an offer made through the post-office becomes binding as soon as the assent of the person to whom it is addressed is signified by mailing a reply, the contract is still subject to this condition, that the letter of acceptance shall reach its destination; and will fail if the opposite party does not receive notice within a reasonable time in that or some other way. The principle is the same, when a telegram is altered in passing over the line, and misleads a purchaser. We do not, however, express any opinion on this head, and leave it for the consideration of the court above. In deciding that the company is not answerable for unrepeated messages, we have in effect disposed of the whole controversy, and judgment is consequently entered for the defendant on the points reserved.

Judgment for the defendants.

We are pleased to notice by some of our exchanges that Mr. H. J. Morgan, of the Secretary of State's office in Ottawa, better known as the author of several useful Canadian works, has been called to the

Bar of Quebec. At one time he held a very humble position in the Civil service, but by dint of industry and ability has already raised himself to a position of which he may feel justly proud. His example is one that we would like to see more generally followed by young men who enter the Civil service. Many of those who enter the service, being void of ambition, lead a sort of hum-drum existence, without any effort to utilise their leisure, of which they have a good share, by engaging in literary pursuits or in fitting themselves for the higher positions to which they should naturally and properly aspire.

A money bond void on payment of the money by instalments is not within either the Statute 4 & 5 Anne, c. 16, s. 13, or the Common Law Procedure Act 1860, S. 25, and a plea of payment into court of money sufficient to satisfy the claim of the plaintiff in respect of the unpaid instalment for default in payment of which the action is brought is bad.-Preston v. Dania et al 27 L. T. Rep. N. S. 612.

Mowat's Administration of Justice Bill, noticed in another place, we have learned, barely in time to mention, has passed the third reading with very few alterations. The body of the Act will not come into force till 1st January next. This is desirable; though, in suggesting a postponement, we did not contemplate so long a day it will afford practitioners ample time for a deliberate and careful examination, and we hope to be able to give some exposition of its provisions. assisting to its successful working.

No doubt a measure making such important alterations in procedure may be seriously clogged, if not blocked, by a hostile feeling on the part of those who have to work it out, and the hearty cooperation of the judges and the bar is always a great aid to success. We have no doubt that will be given to the new law, and we think the Attorney-General has acted wisely in postponing its operation. Secs. 53, 54, and 55 will come in force at once.

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LAW SOCIETY-HILARY TERM, 1872.

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That all other candidates for admission shall pass a satisfactory examination upon the following subjects, namely, (Latin) Horace, Odes Book 3; Virgil, Eneid, Book 6; Cæsar, Commentaries Books 5 and 6 ; Cicero, Pro Milone. (Mathematics) Arithmetic, Algebra to the end of Quadratic Equations; Euclid, Books 1, 2, and 3. Outlines of Modern Geography, History of England (W. Douglas Hamilton's) English Grammar and Composition. That Articled Clerks shall pass a preliminary examin ation upon the following subjects:-Cæsar, Commentaries Books 5 and 6; Arithmetic; Euclid, Books 1, 2, and 3; Outlines of Modern Geography, History of England (W. Douglas Hamilton's) English Grammar and Composition, Elements of Book-keeping.

That the subjects and books for the first Intermediate Examination shall be:-Real Property, Williams; Equity, Smith's Manual; Common Law, Smith's Manual; Aet respecting the Court of Chancery (C. S. U. C. c. 12), (C. S. U. S. caps. 42 and 44).

That the subjects and books for the second Intermediate Examination be as follows:-Real Property, Leith's Blackstone, Greenwood on the Practice of Conveyancing (chapters on Agreements, Sales, Purchases, Leases, Mortgages, and Wills); Equity, Snell's Treatise; Common Law, Broom's Common Law, C. S. U. C. c. 88, Statutes of Canada, 29 Vic. c. 28, Insolvency Act.

That the books for the final examination for students at law, shall be as follows:

1. For Call.-Blackstone Vol. i., Leake on Contracts, Watkins on Conveyancing, Story's Equity Jurisprudence, Stephen on Pleading, Lewis' Equity Pleading, Dart on Vendors and Purchasers, Taylor on Evidence, Byles on Bills, the Statute Law, the Pleadings and Practice of the Courts.

2. For Call with Honours, in addition to the preceding. -Russell on Crimes, Broom's Legal Maxims, Lindley on Partnership, Fisher on Mortgages, Benjamin on Sales, Jarman on Wills. Von Savigny's Private International Law (Guthrie's Edition), Maine's Ancient Law.

That the subjects for the final examination of Articled Clerks shall be as follows:-Leith's Blackstone, Watkins on Conveyancing (9th ed.), Smith's Mercantile Law, Story's Equity Jurisprudence, Leake on Contracts, the Statute Law, the Pleadings and Practice of the Courts.

Candidates for the final examinations are subject to reexamination on the subjects of the Intermediate Examinations. All other requisites for obtaining certificates of fitness and for call are continued.

That the Books for the Scholarship Examinations shall be as follows:

1st year. Stephen's Blackstone, Vol. i., Stephen on Pleading, Williams on Personal Property, Griffith's Institutes of Equity, C. S. U. S. c. 12, C. S. U. C. c. 43.

2nd year.-Williams on Real Property, Best on Evidence, Smith on Contracts, Snell's Treatise on Equity, the Registry Acts.

3rd year.-Real Property Statutes relating to Ontario, Stephen's Blackstone, Book V., Byles on Bills, Broom's Legal Maxims, Story's Equity Jurisprudence, Fisher on Mortgages, Vol. 1, and Vol. 2, chaps. 10, 11 and 12.

4th year.-Smith's Real and Personal Property, Russell on Crimes, Common Law Pleading and Practice, Benjamin on Sales, Dart on Vendors and Purchasers, Lewis' Equity Pleading, Equity Pleading and Practice in this Province.

That no one who has been admitted, on the books of the Society as a Student shall be required to pass preliminary examination as an Articled Clerk.

J. HILLYARD CAMERON,
Treasurer.

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DIARY-CONTENTS-EDITORIAL ITEMS.

DIARY FOR MAY.

1. Tues... Assessors in Cities and Towns to comp. Roll by this date. Clerks of Mun. to make return to County Treasurer lands taken up during last year, and certify taxes due thereon.

3. Sat.... Candid. for Att'y to leave Art., &c., with Sec. of Law Soc. Co. Treasurers to make up arrears of taxes on lands.

4. SUN... 3rd Sunday after Easter.

6. Tues... Siege of Quebec raised. 1776. Primary examination of Articled Clerks and Students.

10. Sat.... Treaty of peace bet. France and Germany,

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17. Sat.... Exam. of Articled Clerks for admission as Attorneys.

18. SUN... 5th Sunday after Easter.

19. Mon... Easter Term begins. Articled Clerks and Students to give notice for inter-examination. 22. Thurs.. Inter-examination Law Students and Articled Clerks.

23. Fri.... Paper Day, Q.B. New Trial Day, C.P. 24. Sat.... New Trial Day, Q.B. Paper Day, C.P. 25. SUN.... 1st Sunday after Ascension. Fenian skirmish at Eccles Hill, 1870.

26. Mon.... Pap. Day, Q.B. N.T. Day, C.P. Last d. to decl, for Co. Ct.

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THE

Canada Law Journal.

Toronto, May, 1873.

Lord Romilly, Master of the Rolls, has retired from the Bench after serving in that capacity for twenty-two years. He was in many respects an admirable Judge, but had the unfortunate peculiarity of leaving a large percentage of his decisions on important points reversed or varied on appeal. It is said that Sir George Jessel, the Solicitor General, will succeed him.

The distinguished position which a very large proportion of the Reporters in the English Courts have attained in the profession, is illustrated in the case of Sir Chas. Marshall who died in February of this year, at the age of 84 years. He edited an edition of Marshall on Insurance, and was the author of the reports in the Common Pleas cited by his name. During his life, he was for some years Chief Justice of Ceylon, and was knighted at the time of his appointment.

A valued correspondent reminds us that we need not go out of our own country to award the palm of long serIvice on the Bench. The late Mr. Bowen was appointed a Puisne Judge of the then Court of Queen's Bench for Lower Canada in 1812, and he died Chief Justice of the Superior Court for Lower Canada, in 1866. He therefore sat as a judge for a period of fifty-four years. He had been Attorney-General for some few years before he was appointed to the Bench.

Notes of Recent Decisions..

UNITED STATES REPORTS:

SUPREME COURT:

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EDITORIAL ITEMS-THE ADMINISTRATION OF JUSTICE ACT, 1873.

that Mr. Dorion, Q. C. (of the Canadian Bar), appeared for the respondents. It appears from the report (Herse v. Dufaux, 21 W. R., 313,) that he was accorded precedence in like manner as is granted to members of the English Bar who wear silk. It is worth while noting the fact that the English Judges respected the dignity conferred by the Colonial Government, and granted pre-audience to Mr. Dorion in consequence thereof.

In the Colony of Victoria, the Parliament, finding that a salary of £2,600 was not sufficient to secure the best legal talent for the Bench, has raised the salary of Puisne Judges to £3,000 and that of the Chief Justices to £3,500. Here is an example which may well be imitated in the Dominion of Canada. We are glad to notice from the remarks of Sir John Macdonald and the concurrent observations of Mr. Blake, that the attention of both sides of the House has been called to the question of making some addition to judicial salaries, and we trust that the Session will not be allowed to pass without an amendment of the law in this respect.

We are comforted by observing, in a Philadelphia exchange, an advertisement of the Law Librarian requesting the return of missing books, in number about one hundred and fifty. The Librarian of the "City of Brotherly Love" puts it very nicely indeed, by requesting gentlemen who have borrowed books from the Library to examine their book-shelves and return any volumes that may have been overlooked theretofore. The pilferings from the Law Library in this city. were at one time tolerably extensive, but by the admirable supervision of Mr. Esten, the present librarian, the loss of a volume is becoming quite an exceptional

occurrence.

THE ADMINISTRATION OF JUS TICE ACT, 1873.

The Administration of Justice Act is now on the statute book, and we believe it will effectually serve the purpose for which it was designed. Several alterations in the Bill as published by us were made in committee before it finally passed, some clauses were added, one was struck out, and the numbering of the clauses was in part changed. The following sections (according to numbering in bill) passed without alterations, viz:-1 to 12, 14 to 16, 19, 20, 22, 27, 29, 30, 32, 34, 39, 41, 43 to 45, 47 to 55, 57 and 58. All the other sections are altered, some of them very materially. There will be ample time for the examination of all the sections, for the body of the Act does not come into force till the 1st January, 1874. There are nine sections which come into force at once, viz:-46, 47, 51, 56, 57, 58, 62, 63, and so much of 59 as relates to County Court sittings in September. These we subjoin. The numbering is as in the Act:

46. All issues of fact and assessments of damages in actions in any county court may be tried and assessed at the sittings of assize and nisi prius for any county other than that in which the venue is laid, upon an order being obtained for that purpose; and such order may be granted upon similar grounds to those upon which an order changing the place of trial would be granted in the superior courts of common law.

47. In case of there being a junior judge for the county, such junior judge may preside over all or any of the courts of the county, when the senior judge is not present, and shall, as regards any such courts, have the same duties, powers and authority as the senior judge.

51. The judges of the Superior Courts of Common Law, or any four of them, of whom the chief justices shall be two, shall have the like power of making general rules or orders for the effectual execution of this Act, as are conferred upon them by the three hundred and thirty-third, three hundred and thirty-fourth and three hundred and thirty-eighth sections of

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