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ABATEMENT-SLANDER OF TITLE-DEATH opening statement of counsel for the plaintiff, directed OF PLAINTIFF.

a nonsuit to be entered on the ground that the action

came to an end on the death of the original plaintiff. QUEEN'S BENCH DIVISION, APRIL 1, 1887.

Morton Daniel (F. E. Cole with him), for plaintiff.

Kemp, Q. C., and T. J. Bullen, for defendants. HATCHARD V. MEGE.* An action for defamation, either of private character or of a DAY, J. This is an application to set aside a von

person in relation to his trade, comes to an end on the suit, which was directed by the Lord Chief Justice on death of the plaintiff, but an action for the publication of the opening statement of counsel, and the question is a false and malicious statement, causing damage to the whether the ponsuit was properly entered. plaintiff's personal estate, survives.

The statement of claim alleges two distiuct griev. Held therefore that a claim for falsely and maliciously pub ances. The first claim was for infringement of the

lishing a statement calculated to injure the plaintiff's plaintiff's trade-mark, but that was abandoned at the right of property in a trade-mark was put an end to by trial. The second claim is contained in paragraph 4, the death of the plaintiff after the commencement of the which sets out a distinot cause of action. The public action only so far as it was a claim for libel, but that so cation there set out is complained of as a libel on the far as the claim was in the nature of slander of title the plaintiff in relation to his trade. It is substantially a action survived, and could be continued by his personal warning not to buy Delmonico champagne because it representative, who would be entitled to recover on proof is not genuine. The statement of claim alleges that of special damage.

the publication is false and malicious; that would be APPLICATION by the plaintiff for a new trial.

a question for the jury; it is not for us to consider the

facts of the case; we can only look at what was opened A The statement of claim, so far as material to the

by the plaintiff's counsel and wbat appears on the point decided, was as follows:

pleadings. The innuendo charges that the defendants Paragraph 1 alleged that the plaintiff was a wine

intended to convey the meaning that the plaintiff had merchant and importer, and the registered proprietor

no right to use his trade-mark or brand, and that the of a trade-mark thereinafter described, and a dealer

wine he sold was not genuine, It may be (that the in a brand of champagne introduced by him, and

publication bears that meaning, and that the words known as “the Delmonico" champagne.

used import dishonesty. The plaintiff has died, and Paragraph 4 alleged that the defendants wrote and

the question to be decided is bow much, if any part, published “of aud concerning the plaintiff and his said

of the cause of action survives. The statute 4 Edw. 3, trade as a wine merchant and importer the following

ch. 7, and the course of practice, make it clear that a false and malicious libel, that is to say:

civil action for libel died with the death of the person “Caution: Delmonico Champagne. Messrs. Del

| libelled. It does not come within the spirit, and cerbeck & Co., finding that wine stated to be Delmonico

tainly not within the letter of the statute. There is Champagne is being advertised for sale in Great Brit

bowever a further question whether a right of action ain, hereby give notice that such wine cannot be the

can survive because injury to the plaintiff's tradewine it is represented to be, as no champagne shipped

mark is alleged. Injury to trade is constantly alleged under that name can be genuine unless it has their

in actions for libel, and therefore that does not affect names on their labels. Messrs. Delbeck & Co. further

the question of survivorship. In the present case the give notice that if such wine is shipped from France

second part of the statement of claim may be subthey will take proceedings to stop such shipments,

divided into two separate and distinct claims. The and such other proceedings in England as they may

first is for ordinary defamation, either independently be advised," thereby meaning that the plaintiff bad

of the plaintiff's trade, affecting his character by no right to use his said registered trade-mark or brand

charging him with being a dishonest man, or defamafor champagne imported and sold by him, and that in

tion of him in his trade by charging him with being a using such trade-mark or brand he was acting fraudu

dishonest wine merchant. The claim would not gnrlently, and endeavoring to pass off an inferior cham

vive, for it is nothing more than a claim in respect of pagne as being of the manufacture of Messrs. Delbeck

a libel on an individual. But this publication may be & Co., and that the champagne imported and sold by

construed to mean that the plaintiff had no right to the plaintiff was not genuine wive, and that no person

use his trade-mark. This is not properly a libel, but other than the defendants had the right to use the

is rather in the nature of slander of title, which is well word “Delmonico" as a trade-mark or brand, or part

defined in Odgers on Libel and Slander, ch. 5, p. 137, of a trade-mark or brand, of champagne in the United

in the following passage: “But wholly apart from Kingdom.

these cases there is a branch of the law (generally “5. In consequence of the publication of the libel

known by the inappropriate but convenient name, aforesaid, the plaintiff has been greatly injured in his

slander of title, which permits an action to be brought credit and reputation, and in his said trade and business of a wine merchant and importer and dealer in

against any one who maliciously decries the plaintiff's

goods or some other thing belonging to him, and champagne. “The plaintiff claims:

thereby produces special damage to the plaintiff. This

is obviously no part of the law of defamation, for the “(3). 1,0001. damages in respect of the publication of

plaintiff's reputation remains uninjured; it is really the said libel.

an action on the case for maliciously acting in such a

way as to iufliot loss upon the plaintiff. All the pre“(4) An injunction restraining the defendants, their servants or agents, from continuing the publica

ceding rules dispensing with proof of malice and spection of the said libel or any other advertisement or

ial damage are therefore wholly inapplicable to cases

of this kind. Here as in all other actions on the notice to a similar effect."

case, there must be et damnum et injuria. The injuria After the close of the pleadings the original plaintiff

consists in the unlawful words maliciously spoken, died, and an order was made by the master under Or

and the damnum is the consequent money loss to the der XVII, r. 2, that the action should be carried on in

plaintiff." the name of his executrix. At the trial Lord Coleridge, C. J., after hearing the

It appears therefore that the first and last parts of

the innuendo in the present case suggest slander of *18 Q. B. Div. 771.

title. As appears from the passage I have read, au action for slander of title is not an action for libel, but an action to recover damages; in one sense that is is rather in the nature of an action on the case for true; but it is an action for a wrong done, not to the maliciously injuring a person in respect of his estate intestate himself, but to his property; therefore the by asserting that he has no title to it. The action right to sue upon his death was transmitted to his differs from an action for libel in this, that malice is personal representative. For the defendant, reliance not implied from the fact of publication, but must be has been placed upon the judgment of Lord Chelmsproved, and that the falsehood of the statement com ford in Peck v. Gurney, L. R., 6 H. L. 377, 392, 393; it plained of, and the existence of special damage, must is sufficient to say, that in the opinion of his lordship, also be proved in order to entitle the plaintiff to re the executors of the deceased directors were not liable cover. The question whether the publication is false because his estate derived no benefit from the misrepand malicious is for the jury. Here I think special | resentatiou to which he was a party; here the perdamage is alleged by the statement of claim, and if sonal estate of the intestate was injured. The differthe plaintiff could have shown injury to the sale of the ence between the two cases seems to me very great." wine which he sold under his trade-mark, he would Twycross v. Grant, 4 C. P. D. 40, was an action for have been entitled to recover, and that is a cause of fraudulent misrepresentation, but I cannot see the action which survives.

distinction in principle between that case and the For these reasons I am of opinion that the nonsuit present, for it the statement of the law in Twycross v. was right so far as it related to the claim in respect of Grant, to which I have referred, is correct, it follows a personal libel, but was wrong as to the claim in re that here the action is maintainable. spect of so much of the publication as impugned the As to the rest of the action, it is clear that the claim plaintiff's right to sell under his trade-mark or brand. in respect of a libel on the plaintiff in the way of his

There will therefore be an order for a new trial, but trade does not survive; but assuming that the stateit will be limited to this latter part of the claim. ment was calculated to bring the plaintiff's tradeWILLS, J. I am of the same opinion. The question

mark into disrepute, and so damage his property, the is not free from difficulty, and it has to be decided ou executrix may suoceed in establishing a cause of acprinciple. As the case now stands, we must take it tion in respect of which she can recover; and therethat it is alleged that the deceased plaintiff was the

fore as to that part of the claim I am of opiuiou that owner of a trade-mark, and that the defendants pub

there ought uot to have been a nonsuit. lished a statement that whoever buys Delmonico Order for a new trial. champagne buys a spurious article. It is also alleged that this statement is false aud malicious, and that it has caused special damage. It is true that special damage is not alleged so specifically as it might have

LIBEL AND SLANDER- PRIVILEGED COMbeen, but I think any reasonable person reading this

MUNICATION-DISCHARGE LISTSstatement of claim would see that it meant that spec

MALICE ial damage in the way of injury to trade had been suffered. It seems to me therefore that the injury com

MICHIGAN SUPREME COURT, JUNE 9, 1887 plained of by this part of the statement of claim is not an injury to the deceased plaiutiff personally, but

Bacon v. MICHIGAN CENT. R. Co. an injury to his property in the trade-mark and brand of Delmonico champagne. It is clear that the right to

The “discharge lists," which it is the custom and duty of each a trade-mark is a right of property. This is apparent

division agent of a railroad company to send monthly to from the decision of the House of Lords in Wother

his fellow agents, to put them on their guard against men spoon v. Currie, L. R., 5 H. L. 508, where it was held,

whom he has discharged, are within the rule of qualified

privilege. But where the reason given for the discharge of that in order to entitle a manufacturer to an injunction to protect his trade-mark, it was not necessary to

an employee is “stealing," and it appears in evidence that

he was turned off because he had taken a good coat of a show any wrongful intention on the part of the person against whom the injunction was asked for.

passenger from a train on which he was riding and left his Here the defendants are alleged to have published a

own, which was much worn, in its place, and that the instatement that the Delmonico champague imported

vestigation of his explanation, that he did it by mistake, and sold by the plaintiff was spurious. It seems to

while hurriedly leaving the cars at his station, was not me that this is an allegation of a direct injury to

fairly conducted, there is evidence tending to show exproperty, which falls within the liberal construction

press malice on the part of the company, and it is error to of the act of 4 Edw. III, ch. 7, adopted by the modern

direct a verdict in its favor. decisions.

TRROR to Circuit Court, Berrien county. Action The case of Twycross v. Grant, 4 C. P. D. 40, seems U for libel. to me to be a strong authority in favor of this view.

Clapp & Bridgman, for Bacon, plaintiff in error. Bramwell, L. J., there said: “It it clear that at common law the rule as to torts was correctly expressed

Edwards & Stewart (Ashley Pound, Otto Kirchner by the maxim, 'Actio personalis moritur cum persona.'

and Henry Russell, of counsel), for the railroad comThis rule was greatly altered at an early stage of our

pany, defendaut in error. legal bistory by 4 Edw. III, ch.7, and this statute being CHAMPLIN, J. The Michigan Central Railroad Com. remedial in its nature, and also those amending it, pany is, and for a long time has been, engaged in ophave been construed very liberally; they have been erating a railroad extending from Detroit to Chicago. held to extend to all torts, except those relating to the It employs agents at different points on its line, who testator's freehold, and those where the injury done have the care of divisions of itf road, and who are auis of a personal nature."

thorized to hire men to work for the defendant. It Brett, L. J., in the same case, said: “Wherever a has adopted and carried into effect a plan by which breach of contract or a tort has been committed in the every employee who is discharged from its service is life-time of a testator, his executor is entitled to reported to every agent authorized to employ men maintain an action, if it is shown upon the face of upon the line of its road regularly once a month. A the proceedings that an injury has accrued to the per- list is made out by the assistant superintendent in sopal estate."

charge of a division, in which are entered the names of Cotton, L. J., said: “It has been argued that this is the persons discharged the previous month, their occupation, and cause; and this list is sent to each of

MARCH, 1882. the agents of the company authorized to employ men, and by them these lists are kept on file for their fu

Why disNAME.

Occupation, ture reference and guidance in employing men. If a

charged. person who has been discharged from the service of the company applies for employment, the agent exam Bacon, John ...

Carpenter ......

Stealing. ines the list, and if it there appears that he was digcharged for some offense, he refuses to employ him.

Thereupon the plaintiff brought this action of libel The railroad company claim that the plan adopted is

against defendant. essential to the efficiency of the force employed by it,

The court charged the jury that the communication and to the protection of the company and the public

was privileged, and the plaintiff could not recover against engaging in service incompetent or dishonest

without proving affirmatively not only the falsehood servants. The plaintiff is a carpenter, and had been employed

of its contents, but also that it was published with

express malice; and upon the latter point he inby the defendant for three or four years in the bridge

structed the jury that there was no evidence to go to department. He resided at Niles, a station on the

them, and he directed a verdict for the defendant. line of defendant's road. He had been at work at

This charge of the court raises the only questions for Michigan City under a foreman by the name of

our consideration, which are: First, was the commuPalmer, and about the 14th of March, 1882, and on the

nication privileged ; and second, did the court err in evening of that day, he entered the fast train of de

taking the case from the jury on the ground of an enfendant to ride to Niles. He sat in the smoking car,

tire want of evidence of express malice. which was poorly lighted, and he threw his overcoat

It is not claimed that the communication belongs to in a seat near by. When he reached Niles, ou leaving

that class which are absolutely privileged, but counthe train in a hurry, by mistake be picked up a coat

sel for defendant conteuds that it was a publication which was not his, and left his own, and carried it,

which related to a matter in which the defendant was with his tools, to the company's shop, and threw it

interested, and concerning which the corporation and across a bench. The owner of the coat, who was at

its officers, to whom it was sent, must needs be adthe time in the dining car, on returning, discovered

vised in order to prosecute defendant's business suchis loss, and reported it to the conductor. The coat

cessfully, and therefore it was prima facie privileged; which belonged to the plaintiff was found where

and to entitle plaintiff to recover, he must show that plaintiff and other employees had been sitting. It

the publication was both false and malicious. The was an old coat, much worn, and had on it a leather

great underlying principle upon which the doctrine of button attached to a string. The conductor tele

privileged communications stands, is public policy. graphed the chief train dispatcher at Jackson that

This is more especially the case with absolute privithere had been a coat taken on his train at Niles by

lege, where the interests and necessities of society reone of Mr. Palmer's men aud another left in its place.

quire that the time and occasion of the publication or The matter was placed in the hands of a special agent

utterance, even though it be both false and malicious, or detective of the company, who sent word to Mr.

shall protect the defamer from all liability to prosecuHumphrey, another employee of the company, at

tion for the sake of the public good. It rests upon the Niles. The next morning, after he received word

same necessity that requires the individual to surrenfrom the special agent, he went into the yard where

der his personal rights, and to suffer loss for the beneMr. Bacon was at work, and asked him if bis coat had

fit of the common welfare. Happily for the citizen, a leather button on it, and he said it had. He then

this class of privilege is restricted to narrow and welltold him he had such a coat in the baggage room, and

defined limits. Qualified privilege exists in a much that he (Bacon) had made a mistake, and got another

larger number of cases. It extends to all communicacoat. Bacon then went over to the bench where he

tions made bona fide upon any subject-matter in which had left the coat he had taken from the car, and

the party communicating has an interest, or in referhanded it to Humphrey, saying that it was not his,

ence to which he has a duty to a person baving a cor. and advised Humphrey to send it back. The coats

responding interest or duty. And the privilege emwere quite dissimilar; the plaintiff's being a much

braces cases where the duty is not a legal one, but worn chinchilla, and the other a beaver cloth coat,

where it is of a moral or social character of imperfect some worn, but in good condition. The special agent

obligation. Tompson v. Dashwood, 11 Q. B. Div. 45; made his report to the assistant superintendent, stat

Davies v. Snead, L. R., 5 Q. B. 611; Waller v. Lock, 45 ing "that the coat had been taken from the train, and

L. T. (N. S.) 243; Somerville v. Hawkins, 10 C. B. 583; that there was a big mistake-after seeing both coats

20 L. J. C. P. 131; Toogood v. Spyring, 1 Cromp., M. & -80 much so that I could not believe the man honest

R. 181; Bank v. Henty, 7 App. Cas. 741; Delany v. who had taken it, and told him that we had enough

Jones, 4 Esp. 193; Laughton v. Bishop, etc., L. R., 4 P. to do to watch professional thieves without watching

C. 504; Harrison v. Bush, 5 El. & Bl. 344; 25 L. J. Q. our own men.” He both wrote and had a personal in- |

B. 25; Whiteley v. Adams, 15 C. B, (N. S.) 392; 33 L.J. terview with the assistant superintendent. He did not,

C. P. 89; Shipley v. Todhunter (per Tindal), 7 Car. & P. before he made the report, go to Niles to make exami

680; Ilarris v. Thompson,, 13C. B. 333; Wilson v. Robnation in reference to the case. This report was based

inson, 7 Q. B. 68; 14 L. J. Q. B. 196; Taylor v. Hawkupon the inspection of the two coats, and what he had

ins, 16 Q. B. 308; 20 L. J. Q. B. 313; Manby v. Witt, 18 learned from Humphrey and the conductor. He tes

C. B. 514; 25 L. J. C. P. 294; Levis v. Chapman, 16 N. tified that he believed what he stated in his report

Y. 372; IIenwood v. Harrison, 41 L. J. C. P. 206; Edto Mr. Brown, the assistant superintendent. A day

vards v. Chandler, 14 Mich. 471; Washburn v. Cook, 3 or two later plaintiff was discharged, for which no

Denio, 110; Knowles v. Peck, 42 Conn. 386; Easley v. cause was assigned at the time. Mr. George Dollivar

Moss, 9 Ala. 266; Van Wyck v. Aspinwall, 17 N. Y. was the defendant's agent at Niles as division road

190; Cockayne v. Hodgkisson, 5 Car. & P. 543; McDoumaster, and whose duty it was to employ men. He

gall v. Claridge, 1 Camp. 267; Weatherston v. Hawkins, received one of these discharge lists in April, 1882,

11. Rep. 110; Laughton v. Bishop, etc., L. R., 4 P. C. for the month of March. Plaintiff came to him, and

495. requested to see the list. He showed it to him. It

The communication in question here is clearly contained, among other names, the following:

| within the principle of the cases above cited. It was made by a person interested in behalf of the defend- | itself, the question of express malice should be left to ant company, and having in charge its affairs to a cer- the jury. In actions for defamation, malice is an es. tain extent, to another person alike interested in be sential element in the plaintiff's case. But in these half of the company regarding matters pertaining to cases the word “malice " is understood as having two his duties as an agent of the company authorized to significations; one its ordinary meaning of ill will employ men. Care was taken to restrict the commu against a person, and the other its legal significatiou, nication to the proper persons, and also to prevent which is a wrongful act done intentionally, without undue publicity. It is not only proper, but it is of the just cause or excuse. These distinctions have been utmost importance to the company, and to the public denominated malice in fact and malice in law. The having business transactions with it, that the servants first implies a desire and an intention to injure; the employed by it shall be men of good character, tem latter is not necessarily inconsistent with an honest perate and efficient. Corporations may be liable for purpose; but if false and defamatory statements are the negligence of their employees--not only so, but made concerning another without sufficient cause or they may be held responsible for not engaging suita excuse, they are legally malicious, and in all ordinary ble servants, as well as for continuing in their employ. cases malice is implied from the defamatory nature of ment unsuitable servanty, whereby third persons suf the statements and their falsity. The effect therefore fer loss or injury through the want of care, skill, in of showing that the communication was made upon temperate habits, or honesty of such servants. The privileged occasion is prima facie to rebut the quality plan adopted and pursued by the defendaut was in or element of malice, and casts upon the plaintiff the tended to protect the company against employment of necessity of showing malice in fact-that is, that the persons whom it had found to be unworthy or ineffi defendant was actuated by ill will in what he did and cient, and is as fully privileged as a communication said, with a design to causelessly or wantonly injure from one stockholder to another respecting the em the plaintiff-and this malice in fact, resting as it ployment of a su

a superintendent, or from one partner to must, upon the libellous matter itself, and the suranother respecting the employment of a book-keeper, rounding circumstances tending to prove fact and or from a person interested in a law-suit to another motive, is a question to be determined by the jury. interested respecting the solicitor employed. But it | The question whether the occasion is such as to rebut is said that it was not necessary to state the cause of the inference of malice if the communication be bona the discharge; that the communication was from a fide is one of law for the court; but whether bona files superior to a subordinate, and would have been suffi- exist is one of fact for the jury. 1 Am. Lead. Cas. cient to state the fact of the discharge without stig (5th ed.) 193; Smith v. Youmans, 3 Hill (S. C.), 85; matizing the plaintiff as a thief. This objection goes Hart v. Reed, 1 B. Mon. 160, 169; Gray v. Pentland, 4 only to the character of the language used, and not to Serg. & R. 420, 423; Flitcraft v. Jenks, 3 Whart. 158. the occasion. The occasion determines the question The jury may find the existence of actual malice from of privilege. The language is only proper to be con the language of the communication itself, as well as sidered in connection with the question of malice. In from extrinsic evidence. Hastings v. Lusk, 22 Wend. the discharge list put in evidence there appear the 410, 421; Coward y. Wellington, 7 Car. & P. 531, 530; names of thirty persons who were discharged in Wright v. Woodgate (per Parke), 2 Cromp., M. & R. March, 1882. Of these, six were discharged for drunk 573, 578; Jackson v. Hopperton, 16 C. B. (N. S.) 829. enness and intemperance, who had been employed as I agree with Erle, C. J., in the case last cited: “The clerks, brakemen, switchmen and laborers; others for plaintiff does not sustain the burden of proof which is incompetency and carelessness. It is in proof that cast upon him by merely giving evidence which is defendant had about 5,000 men in its service, and any equally consistent with either view of the matter in one can see that some system is necessary to prevent issue. When the presumption of malice is neutralbeing imposed upon by persons unfit to be engaged in ized by the circumstances attending the utterance of Buch important business as operating a railroad, where the slander or the publication of the libel, the plainlives and property depend upon the trustworthiness titf must give further evidence of actual or express of those filling every grade of employment down to malice in order to maintain his action.". and including the common laborer. The ruling of the Was there evidence here which would warrant the court as to the privileged character of the communi jury in inferring that defendant acted from malicious cation was correct.

motives when charging that plaintiff was discharged The meaning in law of a privileged communication from its employment for "stealing?" The case is is that it is made on such an occasion as rebuts the obscured somewhat from the fact that the defendant prima facie inference of malice arising from the pub is a corporation, and its motives must be sought for in lication of matter prejudicial to the character of the the acts and utterances of its agents, authorized or plaintiff, and throws upon him the onus of proving ratified by the corporation. The communication itself malice in fact, but not of proving it by extrinsic evi | charges a crime. If made wautonly ; if made without dence only. He has still a right to require that the any reasonable evidence of its truth, or such evidence alleged libel itself shall be submitted to the jury, or circumstances as would lead an ordinarily prudent that they may judge whether there is any evidence of person to believe its truth; if the means of investigamalice on the face of it. Wright v. Woodgate, 2 tion were at hand, and none were made; or if invesCromp., M. & R. 573; 1 Gale, 329.

tigation was made, the extent of the investigation, It was held in Somerville v. Hawkins, supra, that a and what transpired-in short, all the facts and circommunication being shown to be privileged, it lies cumstances which preceded and led up to the charge upon the plaintiff to prove malice in fact. In order to of stealing-were proper, together with the charge entitle him to have the question of malice left to the itself, to be submitted to the jury; and from the jury, he need not show circumstances necessarily whole evidence it was their province to determine leading to the conclusion that malice existed, or such whether the charge was made through a personal illas are inconsistent with its non-existence, but they will or a wantou disregard of the character and rights must be such as raise a probability of malice, and be 1 of plaintiff. To my mind there was evidence, intrinmore consistent with its existence than its non-exist sic and extrinsic the communication itself, from which ence; and in Cooke v. Wildes, 5 El. & BI. 329, it was the jury would have been justified in finding that the held that if the occasion creates such privilege, but defendant was actuated by malice in fact or express there is evidence of express malice, either from ex- | malice. The intrinsic evidence is found in the charge trinsic circumstances or from the language of the libel itself, taking for grauted what was proved, that the exchange of coats was a mistake, caused by carelesgo and carry with them the ownership, either general or ness or negligence, without any criminal intent. It special, of the property which they describe. It is the was for the jury to say that the circumstances were natural and necessary expectation of the carrier issusucb under which the coat was taken, the informa- ! ing them that they will pass freely from one to antion received by the special agent, the report made to other, and advances be made upon their faith; and the assistant superintendent, as to repel and rebut the carrier has no right to believe, and never does bethe bona fides of the defendant's agents in stating that lieve, that their office and effect is limited to the perplaintiff was discharged for stealing. And while I son to whom they are first and directly issued. On the think there was evidence tending to show that the contrary, he is bouud by law to recognize the validity agents of the defendant were acting througb of transfers, and to deliver the property only upon the spite or resentment toward plaintiff because he | production and cancellation of the bill of lading. If had not exercised greater care when taking he desires to limit his responsibility to and delivthe wrong coat when leaving the car, yet I ery to the named consignee alone, he must fully agree in the remarks of Baron Parke in Toogood stamp his bills as “non-negotiable;” and where v. Spyring, 1 Cromp., M. & R. 193, that if such commu- he does not do that, he must be understood nications are fairly warranted by any reasonable uc to intend a possible transfer of the bills, and to afcasion or exigency, and honestly made, such commu. fect the action of such transferees. In such a nications are protected for the common convenieirce case the facts go far beyond the instances cited, in and welfare of society, and the law bas not restricted which an estoppel has been denied because the reprethe right to make them within any narrow limits. If sentations were not mado to the party injured. Maythe agents of the defendant honestly believed that the enborg v. Haynes, 50 N. Y. 675; Maguire v. Selderi, plaintiff took the coat in question under the circum 103 N. Y. 642. These were cases in which the represtances detailed to them, with the intention of ap sentations made were not intended, and could not be propriating it to his own use, the defendant is pro expected, to influence the persons who relied upon tected in having listed plaintiff as having been dis them, and their kuowledge of them was described as charged for stealing. I think the evidence in the case purely accidental, and not anticipated. Here they should have been submitted to the jury to determine were of a totally different character. The bills were whether defendant, through its agents, acted in good made for the precise purpose, so far as the agent and faith under all the circumstances of the case. Klinck Williams were concerned, of deceiving the bank by v. Colby, 46 N. Y. 427; Brow v. Hathaway, 13 Allen, their representations, and every bill issued not 239; Gassett v. Gilbert, 6 Gray, 94; Fowles v. Boven, stamped was issued with the expectation of the prin30 N. Y. 25; Kelly v. Partington, 4 Barn. & Adol. 700; cipal that it would be transferred and used in the or24 E. C. L. 144.

dinary channels of business, and be relied upon as The judgment must be reversed and a new trial evidence of ownership or security for advances. granted.

Those thus trusting to it and affected by it are not acSherwood, J., concurred.

cidentally injured, but have done what they who isCAMPBELL, C. J. I am not satisfied the libel was sued the bill had every reason to expect. Consideraprivileged, and therefore concur in reversal.

tions of this character provide the basis of an equitaMORSE, J. I concur in the reversal.

ble estoppel, without reference to negotiability or directness of representation. It is obvious also upon

the case as presented, that the fact or condition essenNEW YORK COURT OF APPEALS ABSTRACT. tial to the authority of the agent to issue the bills of

lading was one unknown to the bank, and peculiarly AGENCY-FACTOR'S ACT-GOOD FAITH-WAREHOUSE

within the kuowledge of the agent and his principal. MAN.-A warehouseman who advances money to a

If the rule compelled the transferee to incur the peril commission merchant, on grain that has been con

of the existence or absence of the essential fact, it signed to him for sale cannot retain possession of the

would practically end the large volume of business

founded upon transfers of bills of lading. Or whom grain as security for his advancesunder the New

shall the lender inquire? And how ascertain the fact ? York factors' act (Laws 1830, ch. 179) as against the true owver, if he knew at the time that the commis

Naturally he would go to the freight agent who had

already falsely declared in writing that the property sion merchant was wrongfully using the property to

had been received. Is he any more authorraise money for himself, as that act only protects per

ized to make the verbal representation than the writsons dealing in good faith with the apparent owners

ten one? Must the leuder get permission to go through of property. June 7, 1887. Dorrance v. Dean. Opin

the freight honse or examine the books? If the propion by Danforth, J.

erty is grain it may not be so easy to identify; and - LIABILITY OF PRINCIPAL-SCOPE OF AGENT'S the books, if disclosed, are the work of the same AUTHORITY.- A local freight agent, whose duty it was freight agent. It seems very clear that the vital fact to receive and forward freight over the defendant's

of the shipment is one peculiarly within the knowledge road, giving a bill of lading therefor, but having no

of the carrier and his agent, and quite certain to be right to issue such bills except upon the actual receipt unknown to the transferee of the bill of lading, except of the property for transportation, issued fraudulent

as he relies upon the representation of the freight bills of lading to one Williams, who drew a draft on agent. The recital in the bills that the contents of the the consignee mentioned in the bills of lading and packages were unknown would have left the defeud. procured the money upon it of the plaintiff by trans

and free from responsibility for a variance in the actferring the bills of lading to secure its ulti.

ual contents from those described in the bill, but is mate payment. Held, that the plaintiff was no defense where nothing is shipped and the bill is entitled to rely upon the representation in the wholly false. The carrier cannot defend one wrong bills of lading that the goods were actually by presuming that if it had not occurred another shipped, and that the defendant was estopped to deny might have taken its place. The presumption is the the authority of the agent to issue the bills since the | other way, that if an actual shipment had been made, act was within the apparent scope of his authority. the property really delivered would have corresponded While bills of lading are not negotiable in the sense with the description in the bills. The facts of the applicable to commercial paper, they are very com case bring it therefore within the rule of estoppel as monly transferred as security for loans and discouuts, it is established in this court, and justify the decision

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