"what a fool the court made of itself" in beating them. But, in either case, the reporter who furthers their efforts by publication, particularly their points at large, perpetrates an outrage upon his brethren. He absorbs money that can be ill spared by some, indeed very many, not only to fill their shelves with trash, but to exclude other and better matter. "They can't afford to take two sets, and they don't want to break one." The reporter who plays upon this need, and disposition of lawyers is little better in point of morals, than the black-mailer who threatens exposure of past errors in a man's life, unless he will continue a present vice.

The series mentioned is not the only one which needs handling without gloves. This business of reporting is something that cannot be handed over to the clerks. Very rarely can competent assistants of any experience be found, and yet this is the only charitable way to account for some of the numerous blunders in both matter and manner recently pointed out through your valuable journal. If it is not the work of incompetent assistants, it can be from but one of two other causes: either the reporter is too lazy to read the MSS. cases or too stupid to select that which is worth saving after he has read them.

The practical question may be put in the elegant language of the "Reporter" in the note at page 59 of the June number of Howard: How long will this thing work? The answer is plain. Just so long as the lawyers will submit to it. To this point we make a suggestion. Let your journal invite the lawyers who are willing to unite in discontinuing any series of New York reports to send their names and addresses, in confidence, naming the series. Then publish the number every week, and possibly publish the list after a little, upon permission. These books are made, not for glory, not for philanthrophy, not even to satisfy the laudable ambition of the young or the questionable disposition of the older class of lawyers above referred to. They are made to sell, and nothing will tend to bring them up to their duty so quickly as a decrease in the profits. We may as well break off with the 63d of Barb. and 45th of How. as anywhere else. It is, of couse, bad enough to have cases duplicated in one's library even though they are valuable. But when a reporter's or publisher's office becomes a mere hopper from which every thing is to be published that comes, points and all, the sooner the incongruous product is left at the tail of the mill the sooner will the apparatus become choked with its own "eruptions" and stop altogether.

*

A REASON WHY ALL THE DECISIONS OF THE COURT OF APPEALS SHOULD BE REPORTED.

To the Editor Albany Law Journal:

A reason is because these decisions are the end of doubt or controversy. A lawyer spends time in investigating a question which would be saved if the court of appeals were known to have decided it. "Not important?" Answer: it is of sufficient importance for another lawyer to have gone to the court of appeals on it, and the doubts affecting his mind will affect others. Again, decisions of the court of appeals are authority, obligatory on lower courts equally with a statute, and they ought all to be reported as quasi statute law. Hoping Mr. Abbott will bring out all the unreported decisions as a great saving of expense to the profession, irrespective of the price, I remain respectfully, etc., X. Y. Z.

A CORRECTION.

To the Editor of the Albany Law Journal:

Some error and confusion have crept into your report of the case of Soverhill v. Suydam, in the last, but one, LAW JOURNAL, at page fifty-seven.

The questions were between adverse claimants of surplus moneys, upon exceptions taken to a referee's report, which were overruled at special term and the report confirmed; but the order confirming the report gave the appellant, Henry Savage, the amount awarded him as the owner of the first lien by mortgage, including interest up to the date of the referee's report only (August 23, 1871).

Savage appealed to the general term, upon the same ground, that he was entitled as matter of law to interest on the amount due on his mortgage up to the time the money was paid over to him.

The points decided on the appeal were the first and second propositions stated in your notes of the case. The third proposition, that a judgment is not discharged by the act of making the judgment debtor executor of the judgment creditor," was not only not decided, but not even considered by the court, his honor the presiding judge not considering that question before them, and so stating in his opinion. For this reason a re-argument of that question was ordered at the last term.

In glancing over the case of Sweetland v. Illinois & Mississippi Telegraph Co., 1 Am. Rep. 285, a few days since, I was struck with the fact, that a little knowledge of the details of telegraphy, on the part of the plaintiff, would have materially changed the aspect of the case, and might even have assured the affirmance of the original verdict.

The action was for damages caused by a mistake in a telegraphic message sent over the defendant's line, consisting in the omission of several words from the body thereof, by which omission its meaning was greatly changed.

The failure of the plaintiff's case was occasioned, mainly, by his inability to prove that the mistake was caused by circumstances within the power of the defendant to guard against and remedy, his principal effort being directed to show that the instrument at the receiving office was defective. The defendant contended that the error must have been occasioned by uncontrollable atmospheric causes.

The fact is, such a mistake could only have occurred through the gross negligence or incapacity of the company's agents or operators. If it is possible, in the transmission of a telegraphic dispatch, to drop half a dozen words without their being missed by the receiving-operator (unless the sense is destroyed), then there is a remarkable defect in the details of the business. But, there is no such defect. This very contingency is guarded against with the utmost care. Every dispatch sent bears a "check," showing, among other things, the number of words it contains. In transmission, the check immediately follows the signature. The receiving-operator counts the words, verifies their correctness by the check, and notifies the sender.

It is evident that the presentation of these facts on the trial of the case under consideration would have placed it in a very different light.

A. S. HULING.

MERCANTILE AGENCY REPORTERS.

Editor Law Journal:

DEAR SIR-I have read with interest the article in No. 5, Vol. 8 of the ALBANY LAW JOURNAL, on mercantile agencies, and the law appears to be well settled, that the communications of the agencies to subscribers are privileged, but are the communications made to the agencies by their correspondents or reporters privileged? In Sherwood v. Gilbert, Alb. Law Jour., Vol. 2, No. 42, p. 323, Judge Balcom ruled that such protection was not accorded. SUBSCRIBER.

[Within the rule that the communication is not privileged, unless made to one having a special interest in it, we see no reason to doubt the correctness of Judge Balcom's decision. In Taylor v. Church, the defendant was only a hired reporter. Certainly, if the communication is published with the assent or privity of the reporter, it is not privileged as to him. -ED. A. L. J.]

NOTES AND QUERIES.

NEW YORK, August 1, 1873. DEAR SIR-Is there not some mistake in your head note, commission of appeals, ALBANY LAW JOURNAL, vol. 8, No. 4, p. 56, that the judge who tries a cause cannot entertain a motion upon his minutes to set aside a verdict upon the ground that it was contrary to the instructions of the court? The head note is directly contrary to McDonald v. Walter, 40 N. Y. 555, citing and approving Algeo v. Duncan, 39 id. 313, holding that, "independent of the terms of the Code, the court before whom the cause was tried had inherent power to prevent injustice, by setting aside a verdict manifestly in violation of law." The precise point was raised in McDonald v. Walter.

As the opinion in the case - Tinson v. Welsh — is brief, we print it below in answer to the inquiry: "Lott, Ch. C. It appears by the recital in the order granting the new trial that the motion therefor was made, on the part of the defendant, on the judge's minutes, on the ground that the verdict was against the instructions of the court. The only question, therefore, to be determined is, whether the order was proper. The Code, section 264, provided that the judge who tries a cause may, in his discretion, entertain a motion, to be made on his minutes, to set aside a verdict and grant a new trial upon exceptions, or for sufficient evidence, or for excessive damages. The motion, on which the order in question was granted, was on neither of these grounds, and was wholly unauthorized by that provision.

"It is unnecessary to inquire whether the judge could have set aside the verdict on the ground stated in the order, without an application by either party. That question does not arise on the appeal. The order as made was erroneous, and it was properly reversed by the general term. The order of reversal must, therefore, be affirmed with costs, and judgment absolute must be entered against the appellant, pursuant to his stipulation, on the verdict.

"All concur in result; Earl, C., upon the ground that the jury having found the facts against defendant he could not complain that the verdict was not as large as under the instructions of the court it should have been.

"Order affirmed and judgment accordingly."

BOOK NOTICE.

The Practice at Law, in Equity and in Special Proceedings, in all the Courts of Record in the State of New York: with appropriate forms. By William Wait, counselor at law. Vol. 2. Albany: William Gould & Son, 1873.

In the two volumes thus far issued, Mr. Wait has exhausted seven of the twenty-one parts into which he proposes to divide the work. The present volume includes, of the fifth part, the chapters on injunctions, attachments, receivers and ne exeat; part six on pleadings, and part seven on proceedings between pleading and trial.

The general plan and execution of the work seems to us to be excellent. The arrangement is much more systematic and logical than that of Whittaker, while the treatment is more comprehensive and exhaustive than that of Tillinghast and Shearman; and in both these particulars the work is much superior to the volumes of Tiffany and Smith.

If there is any serious fault to be found it is in a tendency to expansion; but considering the multitude of topics to be treated and of the conflicting decisions therein, it is a fault not to be easily avoided. However, the work should be brought within the limits of three volumes of the size of those already issued; and this, we fear, Mr. Wait will not succeed in accomplishing, there being yet fourteen parts to be elaborated, and some of them as those on "trials," "judgments' and "appeals"-being extensive and important. To extend a work upon practice into four or five volumes is hardly justifiable even in this State. But after all, the principal need is that the work be accurate and exhaustive, and such, we believe, Mr. Wait's will, as a rule, be found to be.

LEGAL NEWS.

The Ohio constitutional convention has adjourned until December 2.

The new Code of Iowa goes into effect on the first of next month.

Miss Susan B. Anthony is circulating a petition for the appointment of ex-Judge Selden, of this State, to the chief justiceship of the United States.

The seventh amendment to the North Carolina constitution proposes to strike from the constitution the provisions relating to the appointment and duties of the Code commission, and thus to abolish that office.

Ex-Senator Foote, of Mississippi, in a communication regarding Lincoln and Chase, makes the following statement in relation to the appointment of Mr. Chase as chief justice:

Touching the matter of the chief justiceship I have little more to do than reiterate my former statement. It is undoubtedly true, as I have the best reason to believe, that President Lincoln (whether before the actual decease of Judge Taney-who was for a long while before his death in a rapidly sinking and hopeless condition - or immediately after that event I cannot precisely say which), did tender the chief justiceship to Judge Swayne, who did consent to accept it.

Some time subsequent thereto, President Lincoln was warmly urged by certain influential gentlemen to cfer the appointment to Judge Chase; these gentlemen giving assurance that if this should be done, Mr. Chase's name should no longer be mentioned in connection with the presidential contest then pending."

The Albany Law Journal.

ALBANY, AUGUST 16, 1873.

MEASURE OF DAMAGE IN TELEGRAPH CASES.

In regard to the measure of damages, the principal question has been that arising from the rule "causa proxima non remota spectatur." "The cardinal rule undoubtedly is," said Chief Justice Earl in Leonard v. New York, Albany, etc., Tel. Co., 41 N. Y. 544; 1 Am. Rep. 446, "that the one party shall recover all the damages which has been occasioned by the breach of contract by the other party. But this rule is modified in its application by two others. The damages must flow directly and naturally from the breach of contract, and they must be certain, both in their nature and in respect to the cause from which they proceed. Under this latter rule, speculative, contingent and remote damages, which cannot be directly traced to the breach complained of, are excluded. Under the former rule, such damages are only allowed as may fairly be supposed to have entered into the contemplation of the parties when they made the contract, as might naturally be expected to follow its violation. It is not required that the parties must have contemplated the actual damages which are to be allowed, but the damages must be such as the parties may fairly be supposed to have contemplated when they made the contract."

In Lane v. Montreal Tel. Co., 7 Upper Canada Com. Pl. Rep. 23 (1857), the plaintiff, a ship owner, having been induced by the error of a telegraph company in the transmission of a message to suppose he could obtain a cargo of eight thousand instead of three thousand bushels of wheat from Chatham to Oswego, abandoned a contract for a cargo from Detroit, and sent his vessel to Chatham, whence it sailed with a cargo of three thousand bushels only; Held, that the damages which naturally resulted from the defendant's breach of duty were the expenses of sending the vessel to Chatham and back, and that the plaintiff was not entitled to claim the profits he might have made from carrying the eight thousand bushels. See, also, Washington, etc., Tel. Co. v. Hobson, 15 Grat. 122.

"sixty-six" was substituted for "fifty "-six. No explanation of the meaning of the telegram was made to the telegraph company. Held, that the measure of damages was simply the price paid for transmitting the telegram.

So in Landsberger v. Magnetic Telegraph Co., 32 Barb. 530, it was held that a telegraph company which, through negligence, fails to transmit and deliver a telegram in these words, "Get $10,000 of the Mail Company," is not liable in damages for the loss of commissions upon a purchase which the sender would have made if the telegram had been delivered, or for a penalty which, by terms of a contract, he was obliged to pay in consequence of the failure to make that purchase, the court saying that defendants had no information in relation to the dispatch, ex| cept what could be derived from the dispatch itself.

So in Gildersleve's Case, 29 Md. 232 (1868), a telegram directing a broker to "sell fifty gold" was held not to show upon its face that the plaintiff meant $50,000 in gold, and that, accordingly, he could not recover for a loss sustained by reason of the failure to sell that amount, no information having been given to the company that such was the meaning of the words.

So in Baldwin's Case, 6 Am. Rep. 165; 45 N. Y. 744, wherein the question was fully discussed, it was held that, where a telegraph company receives for transmission a message without notice or information, either from the contents of the message or otherwise, of any fact indicating that extraordinary care or speed in its transmission or delivery is important, or that extraordinary or special damages will result from any neglect of care or accuracy in sending it, the company will not be liable for such damage or loss in case of mistake.

Other cases, however, appear to hold the companies liable for the direct proximate damage occurring through their errors, without regard to their knowledge of what such damages were likely to be.

It has been held that even where the loss is the direct consequence of the error or delay, the company are not liable unless either the terms of the message show that such loss would naturally follow or the circumstances of the case were explained to the company.

chase, have notified the company of such intention; should have made a tender of such excess to the company on the condition of its paying the price and all the charges incident to the purchase; and also, that, in case of its refusal to accept said tender and comply with its conditions, they would proceed to sell such excess at Mobile, and, after crediting said company with the net profits, would look to it for the difference between the amount of such proceeds and the cost of the excess, including all proper charges; and, upon the failure of the company, after notice, to accede to their offer, they should have proceeded ac cordingly.

In De Rutte v. The New York, Telegraph Co., the plaintiff's agent at Bordeaux telegraphed him at San Francisco to purchase for arties in Bordeaux a ship load of five or six hundred tons of wheat at a limited price, landed in Bordeaux. Through an error of defendant in transmission the price was raised in the message delivered to plaintiff. Misled by the error, the plaintiff chartered a vessel and purchased a cargo. But, before the vessel sailed, he discovered, by means of a letter, the mistake, and thereupon sold the wheat and got rid of the charter party, incurring a loss of over $2,000, for which he brought action against defendant. Held, that, as the or in the dispatch was the cause of his purchasing the wheat at the price which he did, and as the inevitable loss which occurred was the direct and immediate consequence of the error, the loss he sustained was the proper measure of damages.

In United States Telegraph Co. v. Wenger, 55 Penn. St. 262, the plaintiff's agent delivered to a telegraph company at Lancaster, Pennsylvania, the following telegram, addressed to brokers in New York: "Buy fifty North-western, fifty Prairie du Chien, limit, forty-five." The company, through negligence, sent it only a part of the way, and those stocks rose in value before the neglect was ascertained and another order sent. Held, that the plaintiff was entitled to recover the increased cost of the shares to which he was subjected by the company's negligence. But in this case the court said, in express terms: "The dispatch was such as to disclose the nature of the business to which it related, and the loss might be very likely to occur if there was a want of promptitude in transmitting it." And the court also pointed out the distinction between the case and Landsberger's

case, supra.

In Leonard v. The New York, etc., Telegraph Co., 41 N. Y. 544; 1 Am. Rep. 446, the plaintiff's agent in Chicago telegraphed to his agent in Oswego for five thousand sacks of salt. By the carelessness of the operator the message was made to read "casks;" and five thousand casks were sent, for which there was no market in C., and which were sold at a loss. In an action against the telegraph company for damages, the referee decided that the measure of damages was the difference between the market value

99

at O. and at C. on the day of shipment, together with the costs of transportation from O. to C. The court of appeals held this rule of damages sufficiently favorable to the defendant. The damages allowed were the proximate, direct result of the breach; nothing was allowed for any damage resulting from the non-fulfillment of the order as actually given, though non constat that such allowance might not have been sustained by the court. Sweatland's Case, 27 Iowa, 433; 1 Am. Rep. 285, is not an authority on the question of damages, because in that case the art of damages was fixed by stipulation.

Squine v. The Western Union Telegraph Co., 98 Mass. 232867), it was held, that a telegraph company which has been negligent in omitting to deliver a telegram, agreeing to accept an offer to sell certain goods at a certain price, and in consequence of which negligence the bargain has been lost, is liable for the additional sum which the plaintiff would have been ampelled to pay at the same place in order to obtain the same quantity similar goods.

In True v. The International Telegraph Company, 60 Maine, 9, where, in consequence of a failure to deliver a message ordering a certain quantity of goods, a loss to the plaintiff occurred through a rise in their value, the measure of damages was held to be thaifference between the value of goods at the price named, and the sum which the plaintiff, in the exercise of reasonable diligence after notice of the default of the telegraph company, would have been compelled to expend in purchasing the same quantity and quality of goods. This holding is in direct conformity with that in Squire's Case, supra.

In Graham's Case, 1 Col. 230 (1871), the telegraph company neglected to deliver a message directing the person to whom it was addressed to "ship oil soon as possible at very best rates you can," and the measure of damage was held, in a well-considered opinion, to be the increased price of freight and all other expenses to which the plaintiff was subjected, but not to include the profits which the sender might have made upon the oil. Had the price of oil advanced between the time when the message ought to have been delivered and the time of the purchase, due diligence having been used, that would also undoubtedly have been a valid item of damage.

In the case of Rittenhouse v. The Independent Line of Telegraph, 44 N. Y. 263; 4 Am. Rep. 673, the plaintiff delivered at defendant's office, to be transmitted to brokers in New York, the following telegram: "If we have any old Southern on hand, sell same before board. Buy five Hudson at board." In transmission, "Hudson" was changed to "hundred," and the brokers thereupon bought five hundred shares old Southern (Michigan Southern Railroad). Plaintiff, hearing of this, directed a sale of the Southern and the purchase of five hundred shares of Hudson River, according to the intent of the original message, and which it appeared would have been understood by the