1880 Ex.D. Attorney-General v. Edison Telephone Company of London. materially from a "telegram in respect of which, or of the collection, receipt and transmission or delivery of which, no money or valuable consideration shall be or promised" (the words "shall be" seem to be wanted before "promised") "to be made or given." And a message "relating to the business or private affairs of the owner" of the telegraph by which it is sent is a telegram. Thus the second exception seems to contain everything which can fall within the first and nothing more, except possibly telegrams not charged [261 for transmitted by a telegraph used solely for private use and relating to the business of the owner of the telegraph, such telegraph not being maintained by the owner. But no case occurs to us in which a man is likely to own a telegraph and use it exclusively for his own business and yet not to maintain it. Some light may perhaps be thrown upon the subject by an obscure provision in the first exception. This exception authorizes individuals to keep telegraphs for their own use, and to send messages by them relating to their own affairs so long as no charge is made for the messages. This condition is, as it stands, unintelligible. How could a man make a charge to himself for sending a message on his own telegraph about his own affairs? It suggests that the exception may have been originally intended to provide for two classes of telegrams sent by telegraph maintained or used solely for private use, namely, first, telegrams relating to the private affairs of the owner; and, secondly, telegrams relating to other people's affairs, sent as an exceptional favor and not charged for; but this is certainly not said. The second exception provides not only for nearly every case provided for by the first exception, but also for the case which seems to have been, for some reason, omitted from the first exception, namely, telegrams relating to the affairs of the owners' friends sent gratuitously; for the telegrams to which the second exception refers may relate to any subject so long as they are not charged for, and so long as the telegraph by which they are sent is maintained for the private use of any corporation, company, or person. Probably some amendment made while the act was passing through Parliament was the cause of this confusion, but, however this may have been, the effect of the two exceptions seems to us to be that if a person, company, or corporation has a telegraph maintained bona fide for his or its own use-if, for instance, a banker has a telegraph to communicate between his office in the city and another office in a distant part of London, or if under the act of 1868 29 ENG. REP. 78 1880 Attorney-General v. Edison Telephone Company of London. Ex.D. (s. 9, subs. 8) a railway has made arrangements with a coal master upon the company's system for a private telegraph between his coal pit and a station, they may not only send telegrams on their own affairs, but may also, under special circumstances, and if no charge is made, send messages on 262] the affairs of others. This view of the exceptions shows how wide the exclusive privilege granted to the Postmaster-General was intended to be. But for them it would be unlawful for the owner of works spread over a great space of ground to have a telegraph to communicate between the different parts of the establishment, or for a man of business with two offices in different parts of London to have a telegraph between them. This supports what we have already said as to the difference between the exclusive privilege of the Postmaster-General in relation to telegrams and in relation to letters. The privilege relating to telegrams seems to us to be the wider of the two. It was argued by the defendants that they were withinthe first exception, because in it the word "owner" ought to be read as including "owners," the effect of which was said to be that two persons might contribute to keep up a telegraph and use it for communicating with each other on affairs interesting to either, that each of them might again communicate with others, and that thus the country might in theory be covered with a network of telegraphic wires, each connecting two persons only. It was further suggested that if this were lawful, it would be lawful in order to avoid circuity and complication to consolidate the individual wires into a small number owned by a large number of subscribers, and this it was said was practically what was done by the defendant company. This ingenious argument appears to us to be unfounded, both in law and in fact. The exceptions seem to us to apply exclusively to telegraphs kept either by a single owner or under some express provision of the Telegraph Acts, like the one already referred to; but, quite apart from this, it is obvious that the telegraphs of the defendant company are neither owned nor maintained by the subscribers, nor are they used solely by the owners. The switch board and the trunk wires are the property of the defendant company, and they are essential to the system of communication adopted. Moreover, a charge in the shape of rent is made for the transmission of messages, and from this the company derives a profit. Each of these circumstances takes the case out of the exceptions, or rather prevents them from applying to it. Lastly, it was asked by the defendants when and by Ex.D. Attorney-General v. Edison Telephone Company of London. 1880 whom the offence (if any) of the defendant company was committed. To this we think the answer is, that if [263 several persons combine to do an illegal act, each is guilty of the whole of it, so that when A. sends a telegram to B. by means provided by the company for that purpose, and under the provisions of a contract by which it is carried out, A., B. and the company are all guilty of an offence under s. 6 of the act of 1869, namely, the offence of transmitting a telegram. Apart from this we think that when the company's servant puts A. in telephonic communication with B. the company aids and is concerned in transmitting a telegram, which, again, is an offence under the same section. The result is, that we give judgment for the Crown, with costs. There will, accordingly, be declarations in the terms of paragraphs 1 and 2 of the prayer, an injunction in the terms of paragraph 3, and an order that an account be taken as in paragraph 4 ('). Judgment for the Crown. Solicitor for the Crown: Horace Watson, Solicitor to the Post Office. Solicitors for defendants: Waterhouse & Winterbotham. (1) The information prayed: 1. A declaration that the wires and apparatus of the company are telegraphs within the meaning of the Telegraph Acts, and that messages or other communications transmitted by means of any such wires and apparatus as aforesaid are telegrams within the meaning of the same acts. 3. That the company, their servants and agents may be restrained by the order and injunction of this court from transmitting, and from aiding in or permitting the transmission within the United Kingdom, by means of any such wires or apparatus as aforesaid, of any message or other communication under or by virtue of any contracts or contract 2. A declaration that the transmission entered into upon the terms mentioned by or with the aid or permission of the in the said notices, or upon any terms company by means of any such wires under which any money or other considand apparatus as aforesaid, of messages eration is or shall be paid or given, or or other communications under or by promised to be paid or given, to the virtue of contracts entered into upon the company, or of any other message or terms mentioned in the notices published other communication in respect of which and circulated by the company as afore- or of the collection, receipt, transmissaid, or upon any terms under which any sion, or delivery of which any money or money or other consideration is or shall other consideration has been or shall be be paid or given, or promised to be paid or given, or promised to be paid or paid or given, to the company, or of given to the company, and from otherany other messages or other communica- wise transmitting, or aiding in or pertions in respect of which or of the col- mitting the transmission within the lection, receipt, transmission or delivery United Kingdom, of any message or of which any money or other considera- other communication by means of any tion has been or shall be paid or given, telegraph, for money or other consideraor promised to be paid or given to the tion, and from in any other manner incompany, is an infringement of the ex- fringing the exclusive privileges conclusive privilege conferred on the Post-ferred on the Postmaster-General by the master-General by the Telegraph Act, Telegraph Act, 1869. 1869. 4. That an account may be taken of 1880 Burgess v. Northwich Local Board. C.P.D [6 Queen's Bench Division, 264.] Dec. 21, 1880-C.P.D. 264] *BURGESS and Another v. THE NORTHWICH LOCAL BOARD. Highway-Houses abutting—Subsidence of Land-Raising of Road by Local Board— Raising of Houses by Owners-Compensation for Cost of Liability of Local Board38 & 39 Vict. c. 55 (Public Health Act, 1875), ss. 144, 149, 179, 308. The plaintiffs were owners of houses abutting on a highway which was vested in the defendants, a local board acting under 38 & 39 Vict. c. 55 (Public Health Act, 1875), and having the powers and liabilities of surveyor of highways. The abstraction of salt from a bed beneath them caused from time to time a subsidence of the ground upon which the houses and highway were situate. The houses were rebuilt in 1870 on timber, so that they might be raised by screw-jacks. In 1876 the surface of the highway in front of the houses had subsided considerably, and the houses had subsided with it. The surface of the roadway remained continuous, so that traffic could pass along it as before; but the roadway was in a curved hollow, and at the level to which it had subsided was liable to be flooded, and in fact was flooded at times, so as to render traffic impossible. The defendants put materials on the roadway, so as to make the surface immediately above the point of the lowest subsidence about 4 feet 3 inches higher than it was at the commencement of the work. The plaintiffs, having had notice from the defendants, raised their houses simultaneously with the works to the roadway, and then claimed under s. 308 of the act, and were awarded compensation for the cost of raising the houses. Having regard to the obstruction to traffic caused by floods, the raising of the road was reasonably necessary to put it in a proper state for traffic; but, excluding the consideration of floods, the raising of the road to the extent described, though a reasonable and prudent act, was not necessary to put the road into a proper state for traffic: Held, that as the highway was vested in the defendants, no action of trespass 265] *could have been maintained by the plaintiffs, even if more materials had been placed on the road than a surveyor of highways could justify, and that the plaintiffs had no right to have the road maintained at the level to which it accidentally and recently sank; and that the works of the defendants were not done “in exercise of any of the powers" of the act within the terms of s. 308-which mean powers created by the act, and not simply powers transferred by s. 144 from the surveyor to the local board-but were done, if not strictly in pursuance of their duty as surveyors of highways, at all events in exercise of such powers as surveyors of highways have, and, consequently, that the plaintiffs were not entitled to compensation. all moneys that have been paid to the company in respect of any messages or other communications transmitted or to be transmitted by means of any such wires and apparatus as aforesaid, by or with the aid or with the permission of the company, or in respect of the collection, receipt, transmission, or delivery of any such messages or other communications, and that the company may be ordered to pay into the exchequer, to the account of the Consolidated Fund, all moneys which, on the taking of such account, shall be found to have been paid to the company as aforesaid, Q.B.D. Edwards v. Midland Railway Co. 1880 [6 Queen's Bench Division, 287.] Dec. 15, 1880—Q.B.D. *EDWARDS V. THE MIDLAND RAILWAY COMPANY. [287 Corporation-Action against-Malicious Prosecution. An action for a malicious prosecution will lie against a company. The employment of policemen by a company to protect their property is an act within the scope of the incorporation of the company. FURTHER Consideration before Fry, J. The cause was tried at the last summer assizes at Stafford, when it appeared that the plaintiff sued the company for malicious prosecution. He had been arrested by a detective policeman in the employment of the company on a charge of theft, and the charge had been dismissed by the magistrate. The jury gave the plaintiff damages for the malicious. prosecution, and two questions of law were reserved: 1. Whether an action for malicious prosecution will lie against a corporation. 2. Whether the employment of the police was an act within the scope of the company's incorporation. Staveley Hill, Q.C., and A. T. Lawrence, for the plaintiff: Such an action lies against a corporation: Eastern Counties Ry. Co. v. Broom ('); Goff v. Great Northern Ry. Co. (); Yarborough v. Governor and Company of Bank of England (3). The acts of the police were the acts of the company: Green v. London General Omnibus Co. (). It is not necessary to show actual malice: Whitfield v. South Eastern Ry. Co. (†). Powell, Q.C., and Evans, for the company: There can be no such action against a company: Stevens v. Midland Counties Ry. Co. (). A corparation was held not to be a person in Pharmaceutical Society v. London and Provincial Supply Association ('). There was no malice here: Bank of British North America v. Strong (*). The employment of the police is not within the scope of [288 the authority of the company's officers: Bank of New South Wales v. Owston ('). FRY, J.: I am asked to decide this question, as it were, by way of rehearsal, as it is intended to carry it to a higher (1) 6 Ex., 314. (2) 30 L. J. (Q.B.), 148. (3) 16 East, 6. (4) 7 C. B. (N.S.), 290. (5) E. B. & E., 115. (6) 10 Ex., 352. (1) 5 App. Cas., 857. (*) 1 App. Cas., 307; 16 Eng. R., 24. (9) 4 App. Cas., 271. |