lected under execution, is in custodia legis,3 and in regard to this subject, Mr. Justice Parker, in Wilder v. Bailey,* says: "When an officer receives money upon an execution, the law prescribes his duty in relation to it. He is not bound to pay it over to the creditor until the return day of the execution. From his receipt of it until that day, it is not the creditor's money, but is in the custody of the law."5 In Illinois it is held that garnishment imposes no lien upon property in garnishee's hands, and does not, as such, put the property in custodia legis; but contra as to garnishment placing property in custodia legis. 7 In view of the principle that no person can be charged as garnishee in respect to money or effects held by authority of the law, it is held that money in the hands of an administrator, which will belong to an attachment defendant as distributee, after settlement, is in custodia legis, and that the administrator can not be made to answer in garnishment therefor. 8 And the court in Brooks v. Cook, says: "We have determined this in the case of public officers, and the reason of those decisions applies with equal force to the case of an administrator."'10 This custom of London does

Scrivener,, g B. Myn. 59; Walker Foxcraft, 2 Me 270; Lathrop v. Blake, 3 Foster, 46; Thompson v. Marsh, 14 Mass. 269; Richardson v. Griggs, 16 Mo. 416; Waite v. Osborne, 11 Me. 185; Dubois v. Dubois, 6 Cow. 494; Prentiss v. Bliss, 4 Vt. 513; Reddick v. Smith, 4 Ill. 451; Crane v. Freese, 1 Harrison. 305; Hagan v. Lucas, 10 Pet. 400.

3 Reddick v. Smith, 4 Ill. 451; Clymer v. Willis, Cal. 363; Jones v. Jones, 1 Bland. 443; Dawson v. Holcomb, 1 Ohio, 135; Dubois v. Dubois, 6 Cow. 494. 4 3 Mass. 289.

5 Pollard v. Ross, 5 Mass. 319; Robinson v. Howard, 7 Cush. 257. In further support of this, see the following cases, and cases cited therein: Adams v. Barrett, 2 N. H. 374; Crane v. Freese, 1 Harrison, 305; Hurlburt v. Hicks, 17 Vt. 193; Farmers' Bank v. Beaston, 7 G. & J. 421; Jones v. Jones, 1 Bland. 443; Blair v. Cantey, 2 Speers, 34; Burrell v. Letson, 2 Speers, 378; Marvin v. Hawley, 9 Mo. 382; Pawley v. Gains, 1 Overt. 208; Drane v. McGavock, 7 Humph. 132; Staples v. Staples, 4 Me. 532; Zurcher v. Magee, 2 Ala. 253; Overton v. Hill, 1 Murphy, 47. 6 Bigelow v. Andrews, 31 Ill. 322.

7 Biggs v. Kouns, 7 Dana, 405; Brashear v. West, 7 Pet. 608; Mattingly v. Boyd, 20 How. 128.

8 Mock v. King, 15 Ala. 66; Elliott v. Newby, 2 Hawkes, 21; Thorn v. Woodruff, 5 Ark. 55; Fowler v. McClelland, 5 Ark. 188; Welch v. Gurley, Haywood, 334; Gee v. Warwick, 2 Haywood, 354; Colby v. Coates, 6 Cush. 558; Young v. Young, 2 Hill (S. C.), 425; Brooks v. Cook, 8 Mass. 246; Waite v. Osborne, 11 Me. 185; Coburn v. Ansart, 3 Mass. 319; Marvel v. Houston, 2 Harr. 349.

not lie against executors or administrators, because they are presumed to be ignorant of the contracts made by their testator or intestate.11 But otherwise, it is said, if the administrator has been, by the proper tribunal, ordered and adjudged to pay a certain sum to a certain creditor against whom attachment proceedings are waged.12 In Adams v. Barrett, 13 the court considers the Massachusetts doctrine sound, and proceeds to give reasons for the departure of making an administrator subject to garnishment after the order of court; and in Parks v. Hadley, 14 while the court, in view of the statute, charged the administrator as garnishee, yet it recognized the general principle of the exemption of an administrator from garnishment.15 In In some States the original principle is closely followed and the reason for so doing is well argued, and in those States, administrators, as such, are exempt from garnishment after as well as before, order of court; 16 and an administrator against whom an allowance has been made by the court in favor of the creditor of the estate, and ordered to pay him a pro rata dividend, is not liable to garnishment at the suit of a creditor of that creditor, in respect of such allowance.17 In Thorn v. Woodruff, 18 the court quotes from Delaware, Maine, New York and Massachusetts cases in support of its conclusion, and then says: "The reasoning, in all these cases applies to cases of executors and administrators, under our system of laws for settling the estates of intestates, with great force. To subject executors or

11 Pinchon's Case, 9 Rep. 87b; Hodges v. Jane, Sti. 199; Oreswick v. Armery, Sti. 228.

14 Parks v. Hadley, 9 Vt. 320; Curling v. Hyde, 10 Mo. 374; Fitchett v. Dolbee, 3 Harr. (Del.) 267; Richards v. Griggs, 16 Mo. 416.

13 2 N. H. 374.

14 9 Vt. 320.

15 Bank of Chester v. Ralston, 7 Pa. St. 482; McCreary v. Tapper, 10 Pa. St. 419; Hess v. Shorb, 7 Pa. St. 231.

16 Thorn v. Woodruff, 5 Ark. 55; Fowler v. McClelland, 5 Ark. 188; Gee v. Warwick, 2 Haywood 354; Welch v. Gurley, 2 Haywood 334; Marvel v. Houston, 2 Harr. (Del.) 349; Waite v. Osborne, 11 Me. 185; Kimball v. Woodman, 19 Me. 200; Commercial B'k. v. Nealy, 39 Me. 402; Hanson v. Butler, 48 Me. 81; Raymond v. Sawyer, 37 Me. 406; Curling v. Hyde, 10 Mo. 374; Stanton v. Holmes, 4 Day (Conn.) 87; Winchell v. Allen, 1 Conn. 385; Beckwith v. Brown, 3 N. H. 67; Cushing's Trustee l'rocess, p. 57; Note to Stratton v. Ham, 8 Ind. 84.

17 Fowler v. McClelland, 5 Ark. 188. 18 5 Ark. 55.

administrators to this process of garnishment might destroy the whole operation and intention of our law of administrators. We are, therefore, of opinion, that an executor or administrator, as such, is not subject to garnishment." And in Marvel v. Houston, 19: "The act of the assembly settles the priority of payment of debts in the administration of assetts, and it will not do to allow it to be disturbed in this way. By allowing the debtors of the estate to be garnisheed, the assetts might be diverted from their lawful course of application. of application. Thus, funds applicable to judgment debts might be arrested and applied to simple contract debts. Neither an administrator, therefore, nor a debtor of the estate can be attached, or summoned as garnishee. This is the invariable decision." This basis of reasoning is carried out in Curling v. Hyde, 20 and the court says: "We are, therefore, of the opinion that from principle and analogy, a trustee, or any one acting in a fiduciary character, is not subject to 'be garnished as such, that the assetts in the hands or possession of a fiduciary, are to be paid out in such manner as the law, prescribing the duties, directs and not otherwise; that a contrary doctrine would inevitably lead to much embarassment, and great inconvenience in the administration of estates." An executor can not be held as the trustee of a legatee, whether he be summoned as such, either before or after the order of probate. 21

In some States, by statute, all administrators, guardians, executors and trustees, are subject to garnishment,22 but it may be safely said that where administrators are made subject to garnishment that it is by the peculiar statute of that State. In Wisconsin administrators and executors are not subject to garnishment before the final order for the distribution of the estate, is made, and where he is summoned as garnishee before the making of such order, judgment can not be taken against him, therein, after the order; 23 but whether the administrator would be subject

19 2 Harr. (Del.) 349. 20 10 Mo. 374.

21 Cushing's Trustee Process, p. 57; Beckwith v. Brown, 3 N. H. 67; Winchell v. Allen, Conn. 385; Stanton v. Holmes, 4 Day (Conn.) 87.

22 Ind. R. S. 1881, sec. 942.

23 C. T. Machine Co. v. Miracle, 21 Am. Law Reg. 420; 8. C., 54 Wis.

Since the days when the laborers in the vineyard murmured because "they likewise received every man a penny," the sanction which breathes from the parable to the claim of the hirer of labor to do what he will with his own, so long as he fulfils legal contracts and does nothing unlawful, has been accepted as just, and as supporting a truth which has become an axiom both of political economy and of law. Yet the telegraph operators, who, at this writing, are obstructing for their own purposes a most important channel of business communication, and subjecting the citizens of this country and the United States to the inconvenience and loss entailed by a general strike, seem not to be of this opinion. "The companies are paying large dividends," say the strikers, "let them therefore pay us higher wages, or we will ruin their business.'

It might not be difficult for the political economist, adverting to the history of strikes in general and their uniform result, to prove to these strikers (if they would hearken to him) that their concerted action in this instance is calculated to result in injury rather than in permanent benefit to their craft at large. The scope of this article, however, will be confined to a brief survey, from a legal point of view, of the relations in which the parties engaged in this struggle stand to each other.

Telegraph companies are common carriers of messages, and much of the law relating to common carriers applies to them; they are subject to all rules which are in their nature

да

applicable to all classes of common carriers.1 In fulfilling their duties they must employ care and attention; and, as a learned writer remarks, the word "care," when referring to what is required of them, and when the important and delicate nature of their business is considered, necessarily means great care, such care as would not be exacted of ordinary carriers of merchandise.2 They are held * responsible, not only to the sender of a message, the only person with whom they directly contract, but, also, in many cases, to the receiver. In England and in many of the States of the American Union, they are held liable for the default of other companies whom they employ to transmit their messages, and whose action in such transmission they are unable to oversee and, to a great extent, powerless to control. They are public servants, and can neither refuse messages properly tendered them for transmission, nor give preference to one customer's business over that of another. They must send forward messages in the order in which they receive them; and in Ontario this duty is made obligatory by statute under a penalty for its infraction.5 They must employ competent operatives, and they are responsible for delays as well as mistakes of transmission.6 Even their assumed power to limit their liability to senders of messages by special written stipulations has, in the absence of statute, been doubted, and such stipulations have been held valid only so far as the court trying the issue may adjudge them reasonable. The charters of telegraph companies usually limit them also as to the rates they shall charge.

1 Shearman & Redfield on Negligence, 554; but see Breese v. United States Telegraph Co., 45 Barb. 274; Baxter v. Dominion Tel. Co., 37 U. C. R. 482. 2 Shearman & Redf. Neg. 557.

3 Ross v. United States Tel. Co., 3 Abbott's Pract. Rep. (N. S.) 408; Playford v. United States Tel. Co., L. R. 4 Q. B. 706; Lane v. Cotton, 12 Mod. 488.

4 De Rutte v. New York, etc. Magnetic Tel. Co., 1 Daly, 547.

5 Davis v. Western Union Tel. Co., 1 Cincinnati Sup. Ct. 100; R. S. Ont., cap. 151, sec. 3.

6 Landsberger v. Magnetic Tel. Co., 32 Barb. 330; Stevenson v. Montreal Tel. Co., 16 U. C. R. 530; Kinghorne v. Montreal Tel. Co., 18 U. C. R. 60; Birney v. New York, etc. Printing Tel. Co., 18 Md. 341; Western Union Tel. Co. v. Ward, 23 Ind. 377; Bryant v. American Tel. Co., 1 Daly, 575; United States Tel. Co. v. Wenger, 55 Pa. St. 262; Squire v. Western Union Tel. Co., 98 Mass. 232; True v. International Tel. Co., 60 Me. 9.

7 Western Union Tel. Co. v. Carew, 15 Mich. 525; Wolf v. Western Union Tel. Co., Allen's Tel. Cas. 463.

The responsibility which the companies rest under to forward messages with promptness and accuracy is very heavy, and apparently trivial mistakes or unimportant delays may result to them in large verdicts for damages.

It is thus apparent how great is the danger to which a wide-spread and unexpected strike of their employees may expose them. In the trial of actions against them for damages, the merits of any misunderstanding which may have arisen between them and their servants form no part of the inquiry; the companies are strictly held to their duty to the public to be at all times prepared to receive and transmit messages with ordinary promptness and accuracy, and their failure so to do, from whatever cause arising, is at their own risk. Such is the legal position of the companies. Let us now turn to that of the strikers, as members of a trade union and as individuals.

Trade unions are at the present day recognized by the statute law. In former times,

at the common law, to form combinations of workmen for the purpose of restricting and controlling the free disposal of labor, and for supporting strikes, was held illegal, because operating in restraint of trade.8 "Such combinations," says Hannen, J., "can not create any mutual obligation, having the legal effect of binding each other not to work and not to employ unless upon terms fixed by the combination."'9 The common law showed no partiality towards one class or another, and recognized no class, equally discountenancing improper contracts, whether made between masters 10 or workmen.

While, in later times, statutes have been passed in reference to these subjects, yet these statutes will be found to be, to a great extent, simply declaratory of rights which were in existence prior to their adoption, the chief benefit of the statutes being to introduce more summary remedies. Thus, interfering with, threatening or molesting workmen, always gave their employer a right of action against the offending party.11 So, enticing away and procuring workmen to desert, gave such a right; and it is instructive to note that the measure of damages in these cases

8 Leake, 741.

9 Farrer v. Close, L. R. 4 Q. B. 612. 10 Hilton v. Eckersley, 6 El. & B. 66. 11 Garrett v. Taylor, Cro. Jac. 567.

was not confined to the loss of service, but that the jury were held to be justified in giving ample compensation for all damages resulting from the wrongful act. 12

The courts have also interfered by injunction; and in one case of intimidation by a trade union, this remedy was granted to restrain the posting of placards enjoining workmen not to work for the plaintiffs, upon the ground that the action of the defendants tended to the destruction and deterioration of the plaintiffs' property. 13 The court here interfered in a civil case, although the act complained of was a statutory crime.

It was held in another case that an indictment for conspiracy would lie at common law against the servants of a company, under contract of service, who, being offended by the dismissal of a fellow-servant, agreed together to quit the service of their employer without notice, and in breach of their contracts of service, by reason of which the company were seriously impeded in the conduct of their business. 14

In regard to the statutes relating to this branch of law, it is unnecessary to refer to any earlier than the Trade Union Act, 1872,15 which followed the British Trade Union Act, 1871. It would appear that this act was passed to secure two objects: first, to exempt the members of a trade union from liability to criminal prosecution for conspiracy which they otherwise might incur at common law, where it could be held that the purposes of the union were in restraint of trade and hence unlawful; and to declare not unlawful agreements or trusts between members of trade unions which would be void or voidable at common law for similar reasons; and, secondly, to permit the registration of trade unions the purposes of which are not unlawful, to give power to their trustees to hold the property of the association, bring and defend actions, etc., to fix the responsibility of such trustees, and to provide a summary means of punishing officers or members for withholding or embezzling moneys or property of the union. To accomplish these objects a statute

was necessary, as the common law doctrine as to restraint of trade, though deemed no longer useful or expedient as applying to certain combinations of workmen, was still in force, and required to be partially arrogated; and moreover, difficulty was experienced before the statute in proceeding by indictment or for trespass against defaulting officers, who were generally part-owners as well as trustees, and who hence could not, in many cases, be held liable, save in damages, for the abstraction of property in their hands as such.

The twenty-second section of the act defines the term "trade union" to mean, "such combination, whether temporary or permanent, for regulating the relations between workmen and masters, or for imposing restrictive conditions on the conduct of any trade or business, as would, if this act had not been passed, have been deemed to be an unlawful combination by reason of some one or more of its purposes being in restraint of trade."

The criminal statute, now in force,16 relating to violence, threats and molestation contains the following provisions:

1. Every person who wrongfully and without legal authority, with a view to compel any other person to abstain from doing anything which he has no right to do, or to do anything from which he has a legal right to abstain

1. Uses violence to such other person, or his wife or children, of injures his property; or

2. Intimidates such other person, or his wife or children by threats of using violence to him, her or any of them, or of injuring his property; or

3. Persistently follows such other person about from place to place; or

4. Hides any tools, clothes or other property owned or used by such other person, or deprives him, or hinders him in the use thereof; or

5. Follows such other person with one or more other persons in a disorderly manner in or through any street or road; or

6. Besets or watches the house or other place where such other person resides or works or carries on business or happens to be

Shall be liable to a fine not exceeding one

16 39 Vict. cap. 37 amending 35 Vict. cap. 31.

hundred dollars, or to imprisonment for a term not exceeding three months;

Attending at or near or approaching to such house or other place as aforesaid, in order merely to obtain or communicate information, shall not be deemed a watching or besetting within the meaning of this section.

4. A prosecution shall not be maintainable against a person for conspiracy to do any act, or to cause any act to be done for the purposes of a trade combination, unless such act is an offence indictable by statute or is punishable under the provisions of the act hereby amended; nor shall any person, who is convicted upon any such prosecution, be liable to any greater punishment than is provided by such statute or by the said act as hereby amended, for the act of which he may have been convicted as aforesaid.

Malicious injury to wires, batteries etc., and malicious obstruction of the working of the telegraph in Canada, is made a misdemeanor punishable by imprisonment in any jail for any term less than two years, with or without hard labor. 17

Any person guilty of a wilful omission or neglect of duty which endangers the safety of any railway passenger, or guilty of assisting therein, is liable to like punishment. Railway operators might be affected by this provision. 18

To whichever of the participants in the present struggle between the telegraph companies and their operators the sympathies of the public may be extended, or whatever advantage may be gained by one party or the other, it can hardly be doubted that competition alone, must, in the end, be permitted to regulate the amount of compensation due the skill and labor of telegraph operators as of all other wage-workers. The strikers must thus necessarily-and in no spirit of antagonism to the often poorly paid operatives be it said--fail to obtain any enduring fruit of the struggle and privation they have borne with so much cheerfulness and, withal, moderation. To annul permanently the effect of an economic law as infallible in its operation as any physical law, may well be deemed a hopeless undertaking. Canadian Law Times.

17 32-33 Vict. cap. 22, sec. 41.

18 32-33 Vict. cap. 20, sec. 33.

NEGLIGENCE - LIABILITY OF OWNER OF PREMISES.

PARKER v. BARNARD.

Supreme Judicial Court of Massachusetts, Suffolk, May, 1883.

Under a statute providing that the openings of hoistways, elevators or well holes shall be provided with and protected by a good and substantial railing, and good and sufficient trap-doors, and imposing a penalty for a violation of its provisions, an owner of premises is liable for an injury occasioned to a police. man who, while attempting to examine said premises in the discharge of his duties, has beer precipitated into an elevator well not having such guards.

Price & Peabody, for the plaintiff; G. A. A. Pevy, for the defendant. DEVENS, J., delivered the opinion of the court: The plaintiff was a police officer of the City of Boston, acting under a rule regularly passed by the police commissioners, which made it his duty to examine in the night time the doors and windows of dwellings and stores, to see that they were properly secured, and to give notice to the inmates; or, if such buildings were unoccupied, to make fast the doors and windows found open. He crossed the threshold of the elevator entrance of the building of which the defendants were owners or occupants, the doors of which were open, for the purpose of making an examination, thinking it was the entrance to the upper stories, in order that he might be in from the air and then light his candle, and was precipitated down the well of the elevator, which was unguarded, receiving injury thereby. It is found by the report that he entered with the honest belief "that there might be something wrong being done in the building, and with the honest purpose of arresting offenders if he found any, or of securing the doors for the safety of the property of the occupants." "It is a very convenient rule of the common law," says Chief Justice Gray, "that an entry upon lands to save goods which are in jeopardy or being lost or destroyed by fire, water or other like danger, is not a trespass." Proctor v. Adams, 113Mass. 376, and authorities cited. An individual may thus enter upon the land of another; firemen may do so for the protection of property; officers of the law for similar purposes, and under proper circumstances for the arrest of offenders or the execution of criminal process. The right to do this may be in limitation of the more general right of property which the owner has, but it is for his protection and that of the public. Metallic Compression Co. v. Fitchburg R. Co., 109 Mass. 280; Hyde Park v. Gay, 120 Mass. 593; Commonwealth v. Tobin, 108 Mass. 429; Commonwealth v. Reynolds, 120 Mass. 196; Barnard v. Bartlett, 10 Cush. 501. When doors are left open in the night time, under such circumstanecs that property is left unprotected, it is a reasona ble public regulation which permits an officer to enter in order to warn the inmates of the house,