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FIRST TRIAL TERM IN THE OLD COURT OF
CHANCERY OF THE STATE OF NEW YORK.
ROBERT R. LIVINGSTON, CHANCELLOR.
HISTORICAL CHARACTERS PRESENT,
SCENES AND INCIDENTS.

THE old Albany City Hall, or Stadt Huys, as it was called under the Dutch colonial government, never in all its varied and extended history witnessed a more memorable event than that which was enacted within its walls on July 25, 1786. On that day and in that hall the Court of Chaucery of the State of New York was opened for the first time, in Albany, under the Constitution of 1771. There was much to invest this event with peculiar interest to the citizens of Albany and to the State at large, for this was really the first trial term of that honored court held under the laws of the State of New York. But there was much more than the opening of the court that directed the attention of the people to the old Stadt Huys on the occasion to which we have referred. This was the presence of Robert R. Livingston, the chancellor, statesman and lawyer, who presided during the term over the procedure of the court, and the large assemblage of learned and distinguished lawyers in attend

ance.

Livingston was then in the plenitude of his brilliant and useful career, with a still more distinguished and useful career before him. He was one of the men who largely aided in the formation of our State and National government-an artisan of our system of jurisprudence-one of the most eminent of the scholars, jurists and patriots of that important and critical period of our National existence, the confederacy of the States.

mean a bond without a penalty-for necessaries, provided it is shown that what is sued for is a necessary, and the charge made for it is a reasonable charge. I believe that to be the result of the authorities, and am satisfied with stating the law in that form. The authorities also establish this: that education may in certain circumstances be a necessary. Whether it is a necessary or not will always be a question for a jury, and whether the particular kind of education is a necessary will also be a question for a jury. In order to determine both these questions the station in life, the meaus of the person in question, and all the circumstances of the case will have to be considered. Now, that being so, I will apply the law as I understand it to the present case. It being clear that the infant can be sued upon his covenant in this case, the first question that had to be considered was this: whether the particular education which was provided for by this deed was a necessary. The jury had evidence before them with regard to the means of the young man, his position in life, and what was desired for him, and what it would be reasonable for him to do; and having that evidence before them, they came to the conclusion, as I think they were fully justified in doing, that this particular kind of education-viz., the education which would enable him to be a vaiuer, auctioneer and farmer-was necessary for him. A great deal was said by Mr. Gould with regard to this triple kind of education, these three lines which he was to follow-auctioneering, valuing and farming. I can see nothing unreasonable in his desiring to learn all those different things. It would be for him in after life to determine which of them it would be most advantageous for him to follow. It was said by Mr. Gould that the education in auctioneering and valuing was relinquished, and the learning of farming was taken to, and that that was a breach of the agreement by the master. I cannot agree with him at all in that. It seems to me a most reasonable thing for the master to have done. If this young man thought he had learned enough of the auctioneering and valuing business, or did not care to follow those particular pursuits, and preferred that of farming, it seems to me to be a most reasonable thing on the part of the master to transfer the youth to the farming branch of his business. other question that the jury had to consider-where again there was evidence both ways-was whether the amount of the premium that was to be paid was a reasonable one, and they came to the conclusion that it was. I think that they were fully justified in arriving at that conclusion. There was evidence upon which they might so find. So far from thinking any conclusion which they arrived at on this matter, or with regard to the necessity of the particular education in question unreasonable, I do not hesitate to say, that if I had been on the jury I should have formed the same opinion that they did. The only one other observation which I desire to make is, that the decision in this case does not in any way militate against the decisions which have been brought to our notice with respect to a breach of contract on the part of the apprentice to serve, such as that in Gylbert v. Fletcher and other cases. In my opinion, there was no fault to be found with the direction of the judge, and there was evidence upon which the jury were justified in finding as they did. I think therefore that this motion should be dismissed.

An

Lord ESHER, M. R. I do not mean at all in what I said to differ from what Fry, L. J., has said about education in literature or science being a necessary in certain cases. It is not merely education for a trade that may be a necessary. I had no intention or desire to exclude all other kinds of education. Application for new trial refused.

There was much in the personal appearance and mien of Livingston that commanded respect. His form was commanding and symmetrical. His forehead was high, his brows heavy and protruding; all his features were marked with the impress of intellectuality.

He was stately but courteous, easy and dignified in his bearing. His intellectual qualities compared admirably with his physical appearance, so that his mind, heart and visible bearing elicited spontaneous respect. Though in public and private life he was flexible to every human sympathy, he would not in these days be regarded as a popular man with the inasses. Such men seldom are. He belonged to that aristocracy of wealth, talent and scholarly accomplishments which characterized the leaders of the old Federal party. He never had occasion to assume the platitudes and hollow pretensions of the mere politician to open the way to high honors. Besides he knew that the masses never long esteem and follow those who flatter them; that those who have the flunkeyism to cringe to them will in time complain of their fickleness.

He graduated with high honors at Kings, afterward Columbia, College, in{July, 1765, studied law and was admitted to the colonial bar in the city of New York June 17, 1773. As the law partner of John Jay, he entered at once upon a successful practice in the provincial courts. He had been at the bar but a few years when those stirring events-preludes to the Revolutionary war-called him and his illustrious law partner to that higher and more distinguished career in the service of their country, which connects their names gloriously with history.

By an interesting coincidence, Jay and Livingston were both the recipients of high judicial honor, conferred upon them May 8, 1777. Jay was appointed chief justice of the State, and on the same day Livingston was appointed to preside over the Court of Chancery. Both of these eminent lawyers went to the

bench with the unction of accomplished scholarship and liberal legal learning, ornaments-may we not say corner stones-of the bar of the Empire State. It was the fortune of Jay to give to that bar the fame of seating the first chief justice of the nation on the bench of the United States Supreme Court, in the person of himself. As chief magistrate of the State, as foreign minister of the nation, as the servant of the people and in many other distinguished positions, Jay continued to reflect honor upon himself, on the bar of the State and on the nation itself for many years. Livingston's career was not so eminent as that of Jay, and yet the part he took in giving the Declaration of Independence to the world elevates him in the scale of distinction higher than it was the fortune of Jay to ascend.

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'Robert R. Livingston," wrote Thomas Jefferson to John Adams, "is in every sense of the word a wise, good and great man, one of the ablest of our American statesmen. Nothing that he writes or does seems to cost him any effort, yet there is beauty, power and practicability in all his intellectual productions. It is not a power that awes; it is gentle, unpretending but resistless."

Jefferson wrote this with full knowledge of Livingston's mental endowments. With Franklin and Roger Sherman, he was associated with Livingston in the great work of writing the Declaration of Independence. On many occasions Jefferson in after life, with generous emotions, acknowledged the power, the influence and usefulness of Livingston's pen on that instrument.

The Declaration of Independence, like the works of Shakespeare, is beginning to have newly-discovered authors, the latest of whom, according to the discovery of an ingenious and painstaking writer, is Thomas Paine. But while it is true that the bold, gigantic but erratic pen of Paine did much, very much, to aid our struggle for liberty, circumstances and historical facts place it even beyond prima facie evidence that it had any thing to do with that instrument, which is an enduring monument to Thomas Jefferson, Robert R. Livingston, Benjamin Franklin, and Roger Sher

wan.

Early in July, 1776, while Livingston was actively engaged with those great men in writing the declaration, he was hastily summoned to New York to attend a meeting of the Provincial Assembly, of which he was a member. On July 8, 1776, largely through his influence, the title of the province of New York was changed to that of the State of New York. By that body he was appointed a member of the committee that wrote the first State Constitution. He did not receive this summons until after the declaration was completed, but it prevented him from signing it, though he is invested with all the glory of being one of its authors.

Precisely at half-past 9 in the morning the City Hall bell announced the arrival of the hour for the courts to convene. According to the custom of the times, in opening the terms of courts, the sergeant-at-arms, the sheriff of the county, both in full uniform, the mayor of the city and the members of the bar waited on the chancellor at his hotel, and in procession escorted him to the City Hall. The court-room was thronged with spectators. Amid the most impressive silence the chancellor took his seat on the bench, the crier made the usual proclamation and the first Court of Chancery under our free government was opened for business.

Having thus described the presiding judge of the court, let us glance at the lawyers present. One of the first of these to claim our attention is a man a little below the medium height, but dignified in his bearing. "His head is finely shaped, symmetrical and massive. His eyes are dark, deep-set and full of light and fire.

His nose is formed after the Grecian mould; his mouth well shaped, close-set, with a strong, firm jaw. The characteristics of the spare, clean-cut features are penetration aud force. There is a piercing look about the face even in repose. When he is moved in the strife of debate a fire comes into his eyes, which has a marvellous effect. As men listen to him they feel profoundly the mastery of his strong nature, his imperious will and the passionate energy which gives such force to his pathos, to his invective and to the even flow of clear, convincing arguments." This mau, young as he appears, sits in the bar, entwined with the laurels of the orator and of the soldier, for it is Alexauder Hamilton whom we see. His practice as a lawyer is large and successful, and he appears here to-day as the counsel for his illustrious father-in-law, Gen. Philip Schuyler, who has an important case on the calendar. Three years later Hamilton accepted the portfolio of the treasury department in the cabinet of Washington, and his grand national financial policy was given to the world, and five years later, on January 19, 1791, Burr was elected a senator in Congress by the Legislature of the State of New York, over Gen. Philip Schuyler. This was the beginning of that relentless feud between Hamilton and Burr which terminated in the fatal duel on the heights of Weehawken.

Not far from Hamilton sits a lawyer whose form, face and character needs no descriptiou from us. He has faced the "red artillery" and the flashing bayonets of the British on many a bloody field of the Revolution. Where the death bolts fell deadliest he stood and knew no fear. But he was destined to face enemies far more terrible and relentless than British cannon or British bayonets-the condemnation of his enemies and their denunciation, unequaled in raucour, unprecedenten in history - and yet he was the ablest lawyer, logician and learned advocate that ever stood at the American bar. We need not say this lawyer is Aaron Burr.

An eminent jurist has said: "As a lawyer Burr was the equal of Hamiltou, as a scholar he was his superior. As a statesman, Hamilton rose to higher eminence than Burr. Both had their faults and social frailties; both were politicians, schooled in all the arts of their calling. They were opposing politicians, their opposition led to bitter hatred and as was the custom among such men in the times they lived, they fought a duel, in which, as was generally the result of such contests, one was killed. Political hatred and powerful family influence poured vials of wrath on the head of the survivor of the contest. But time is removing hereditary hatred and old political prejudices are fading away in the light of impartial historical investigation.

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Burr was present at this court, as the opponent of Hamilton, in the suit entitled Philip Schuyler v. Henry Ten Eyck and others."

It was a case of great celebrity, involving considerations of the most important character. The action was brought by Schuyler to perpetually enjoin Ten Eyck and others from building a pier and breakwater at low-water mark on the banks of the Hudson. The pier would abut the property of Schuyler, while the breakwater, it was contended, would impede naviga tion of the river. Ten Eyck, and those interested with him in the case, derived their right to construct the

pier and breakwater from an act of the Legislature of 1794. In his bill of complaint Hamilton prayed for an injunction perpetually restraining Ten Eyck from proceeding with the work, alleging that the act of the Legislature permitting it was unconstitutional; that it would greatly damage Schuyler's property; that it was a nuisance, and that the court had jurisdiction to interfere by injunction to prevent the erection of a nuisance, which, as in this case, would produce serious or irreparable damage, and if the thing sought to be prohibited is clearly a nuisance, the court must grant its injunction without waiting the result of a trial at law.

The case bristled with sharp and deep legal questions. It was just the kind of a case in which Burr delighted, for he revelled in the subtleties of the law, with all the enthusiasm of a poet amid scenes which inspire creative fancy and kindle the imagination. He had interposed a demurrer to Hamilton's carefully-drawn bill of complaint. As a ground of demurrer he alleged that a court of equity could not interfere with any preventive remedy until the issues were adjudicated in a court of law. There were other grounds of demurrer set up by Burr, among which was one raising the point that Hamilton's complaint did not show that building the pier and breakwater was as yet a nuisance. The demurrer, in the hands of Burr was like the sharp, polished rapier of Grammont, made for the cut, the thrust and the parry. It struck at the law on which Hamilton founded his case with telling blows. The argument on both sides was conducted with consummate ability, but to Burr belongs the credit of suggesting the grounds which constituted the basis of the reasoning and conclusion of the chancellor in deciding the case. The speeches of the counsel were listened to by the court, the bar and the spectators with intense interest, for it was a contest between two of the greatest of American lawyers. In his argument Hamilton rose to the highest height of legal science and legal eloquence. But his eloquence was that of the parliamentary orator and debater, rather than that of the close, terse, well-disciplined lawyer. Burr, on the other side, seldom indulged in rhetorical flights. His style was pure, simple and severe, the vehicle of reason and logic. Directness was his most distinguishing characteristic. Whether he appealed to the head or to the heart, he went straight to the subject with full knowledge of every thing connected with it.

Hamilton and Burr occupied the time of the court nearly the entire day. When they concluded their arguments, the chancellor took the papers and in due time rendered a decision denying the injunction asked for by Hamilton, on the grounds which we have already stated.

Though Livingston's learning, talents and industry did much to establish our Court of Equity, yet, as Judge Story said, "that court did not attain its full maturity and masculine vigor until Chancellor Kent brought to it the fullness of his own extraordinary learning, unconquerable diligence and brilliant tal

ents."

Taking another view of the lawyers in the bar, our attention is attracted to a young advocate who, three years previous to the time of which we are writing, began the practice of law in the city of New York. There is much in his bearing and general personal appearance to attract the attention of strangers. He is a great favorite in Albany, for there he studied his profession, and there he was admitted to practice. His professional career, though brief, was brilliant and successful. He had already become to the bar of the State what Henry Brougham, at a subsequent period, was to the English bar. It must be remembered that, in those days, and for many years after, eloquence at the bar was a powerful element of success and honor,

and was cultivated with great assiduity, but by none more successfully than by Brockholst Livingston, for he is the lawyer we are attempting to describe. The beautiful lines dedicated to Bushe, that eloquent master of the Irish bar, applies happily to him as a forensic speaker:

"Sedate at first, at length his reason warms,

And every word and every gesture charms."

He was a native of New York city, born November 25, 1757, a brother of the chancellor whom we have described, and a son of William Livingston, who brought such distinguishing honors to the executive chair of New Jersey. He was a brother-in-law of John Jay, and when that great statesman was appointed minister to Spain, Brockholst Livingston accompanied him as his private secretary. He was educated at Princeton, but shortly before graduating he entered the Continental army, and, like Hamilton and Burr, won a brilliant name as a soldier. He entered the army with the rank of captain, but was soon attached to the staff of Gen. Philip Schuyler, with the rank of major. In the more active and dangerous duties of a soldier, he soon rose to the rank of colonel. At the battle of Saratoga, with Arnold, he made a daring and memorable charge on the British lines. After the surrender of Burgoyne he continued with the army until the close of the war, when he went to Albany and prepared for the bar under the tuition of that truly historic pillar of the Albany bar, Peter W. Yates.

During his student days he was invited by his old venerated commander, Gen. Schuyler, to make his home in that famous mansion, still standing in Albany, in which the charming daughter of Schuyler and Alexander Hamilton were married, and where Burgoyne and his officers, prisoners of war after the battle of Saratoga, were entertained by the chivalrous owner of the mansion, and where Washington, La Fayette, Knox and Green were often entertained, and where Kent, Robert R. Livingston, Jay, Lansing and Van Vechten were often guests.

Professional success soon gave him judicial promotion, and when Judge Morgan Lewis, afterward Governor Lewis, retired from the bench of the Supreme Court of the State, Livingston was appointed in his place. In 1807 he succeeded Judge William Patterson on the bench of the Supreme Court of the United States. His long and distinguished judicial career was terminated by death, March 12, 1823.

The bench and the bar of the State of New York will always revere the name of Brockholst Livingston, and his career as a lawyer and judge is a favorite theme of historians. "He was not so much distinguished by the predominance of any one great quality as by a union of several of the finest. His knowledge was various and deep. A taste exquisitely delicate and largely exercised was one of his prominent characteristics. His brilliancy as a lawyer was exceeded by his eminence as a judge, and the radiance of lawyer and judge was often paled by the triumphs of his pen."

It is said that Livingston's father at first greatly desired that he should become a minister of the Gospel, but while in college an incident occurred which changed his mind, and he decided that his son was better qualified for the bar than the pulpit.

One day, in a pleasant humor, young Livingston, with the assistance of a less-gifted classmate, of the name of Sabine, imprisoned a disagreeable, irritable, pug-nosed professor of mathematics in one of the distant rooms of the college, where he was compelled to remain several hours, even until he made night hideous with his cries for relief. Terribly enraged at this indignity, he commenced the work of detecting the culprit or culprits, who had thus imprisoned him. At length, by close and ingenious investigation, the pro

fessor obtained evidence enough to order Livingston and Sabine to appear before the faculty. Sabine was first examined, but so faithfully did he obey Livingston's instructions to remain silent that nothing of importance could be elicited from him. Then came Livingston's turn, and he was plied with all manner of questions, which he managed to answer so adroitly that nothing positive was established against him.

"Mr. Livingston," said the pug-nosed professor, in his peculiar, snarling manner, this great crime, sir, my cruel and inhuman imprisonment, which makes my blood boil to think of, lies between you and Mr. Sabine; that is certain. Now, sir, what have you to say to that?"

"That I am delighted with what you say, professor," said Livingston.

"Delighted with what I say, sir! And so you glory in your abomination, do you? Delighted with what I say-you-you-ras-. What do you mean, sir?"

"I mean just what I said. I really am delighted to hear you say that this great crime lies between Sabine and myself. I have had some fears that you suspected that it lay on one or both of us, but it seems that you think it only lies between us," said Livingston, with ludicrous composure.

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This answer was equivalent to the ablest defense. It convulsed the entire faculty with laughter, except the astonished professor, who appeared like an italicized exclamation point in an old-fashioned spelling-book a mark of wonder and surprise. Livingston and his friend were acquitted, and this incident made the for. mer a lawyer, and gave to the bench of the State and Nation a learned, accomplished and illustrious judge. No one was more delighted with the sharp and sagacious answer of young Livingston than his father, and he decided that his son should become a lawyer instead of a preacher.

Besides the lawyers we have described, there were many members of the Albany bar,lights and ornaments of the profession of the State and Nation, present at this session of the Court of Chancery. Among these was Peter W. Yates, a member of the Continental Congress, and a member of the committee on correspondence, who stood at the head of the Colonial and State bar, distinguished alike for learning, eloquence and wit.

He disliked Gen. Schuyler, and on one occasion, when that illustrious character gave a brilliant" reception to some of the State officers, Yates, in a poem, in which he scattered wit, with the profusion and spontaneity of Butler in Hudibras, so ridiculed the general and some of his guests that Albany was a scene of laughter.

Abraham Van Vechten, often appropriately termed the great Van Vechten, John V. Henry, acute, ingenious, logical and thrillingly eloquent, and William W. Van Ness, the rarest genius of his time, and subsequently a judge of the Supreme Court of this State, were among the members present.

Thus the now historical Court of Chancery of the State of New York opened its first trial term.

In the evening, Governor George Clinton gave a reception to Chancellor Livingston, the members of the bar, the mayor of the city and prominent citizens. It was one of the most memorable social occasions in the history of the Capital City, graced by the presence of Robert R. Livingston, Alexander Hamilton, Aaron Burr, Brockholst Livingston, Josiah Ogden Hoffman and a galaxy of other legal and judicial luminaries. Well may it be said:

"There was a sound of revelry by night,

And New York's capital had gathered then
Her beauty and her chivalry, and bright
The lamps shone o'er fair women and brave men.
L. B. PROCTOR.

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ABSTRACTS OF VARIOUS RECENT

BANKRUPTCY

DECISIONS.

NEW PROMISE.

Defendant, after a discharge in bankruptcy, wrote to plaintiff, saying, "When I come to B. I will call and see you. I mean right. I will also pay something on account;" and again, “I shall pay you something as soon as possible." After writing the letters, and before suit, defendant was in B., and had the ability to pay the account. Held, that the letters did not constitute a new promise to avoid the effect of the discharge. There is force in the suggestion that the words "on account" recognize the debt as subsisting, and therefore imply a promise to pay it. But it is to be remembered that the defendant has as much right to his defense as the plaintiff once had to her recovery. The law cannot be supposed to look with disfavor upon a bar of its own creation. Hence the defendant is not to be deprived of his right, unless he uses words that plainly mean to renounce it, or at least express a clear undertaking for the future, which is inconsistent with further reliance upon the discharge. This is the meaning of the oftenrepeated statement that a new promise, to avoid the effect of a discharge in bankruptcy, must be distinct and unequivocal (Merriam v. Bayley, 1 Cush. 77, and Elwell v. Cumner, 136 Mass. 102, 104), a statement which is equally correct in principle, whether the obligation, when revived, stands on the new promise as such, or on a waiver of the bar which the statute has given the defendant to use or renounce at his will, which is the view adopted by our decisions, although they sometimes seem to imply that such a waiver can only be accomplished by a promise. Cook v. Shearman, 103 Mass. 21; Way v. Sperry, 6 Cush. 238; Ilsley v. Jewett, 3 Metc. (Mass.) 439; Maxim v. Morse, 8 Mass. 127. See Institution v. Littlefield, 6 Cush. 210, 213; Kelly v. Pike, 5 id. 484, 486. It follows from what has been said that an admission that the debt was incurred and has not been satisfied, or in the language of Chief Justice Shaw, "an acknowledgment of the existence of the debt" is not enough to prevent a defendant from relying on his discharge. Pratt v. Russell, 7 Cush. 462, 464. Neither is a part payment on account. Institution v. Littlefield, and Merriam v. Bayley, ubi supra. It stands on a different footing from part payment of a debt barred by the statute of limitations, which has been allowed a greater effect. Pub. Stat., chap. 197, § 16; Ilsley v. Jewett, 2 Metc. (Mass.) 168. We see no reason why a promise to pay a sum on account should do what an actual payment of it would not do. The words "on account" simply admit the existence of the original debt unsatisfied, and apply the payment to it. They do not in terms waive any defense, and the implication of a new promise is excluded by the promise which is expressed. The latter promise is not to pay the debt, but to pay "something;" that is to say, a sum the amount of which the defendant reserves the right to determine himself. It cannot therefore do more than revive a nominal portion of the debt. The words "I mean right" neither amount to a suflicient promise of themselves, nor enlarge the effect of the following words, which have just been discussed. Elwell v. Cumner, ubi supra; Society v. Winkley, 7 Gray, 460; Allen v. Ferguson, 18 Wall. 1. Sup. Jud. Ct. Mass., Feb. 27, 1885. Bigelow v. Norris. Opinion by Holmes, J.

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In

ble in either case to prove special or actual damages than it is for one charged with the commission of a crime to show specifically in what manner he has been. injured. It is said however that in an action of slander the recovery is had because of slanderous words spoken maliciously, and here it is said there was no malice whatever. While it is true that in slander malice is the gist of the action, yet the term "malice" is always used in such cases in a legal sense. As was said by Bayley, J., in Bromage v. Prosser, 4 Barn. & C. 247, which was an action for slander of a bank, the words being, in substance, that it had stopped payment,

malice,' in common acceptation, means ill will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. And if I traduce a man, whether I know him or not, and whether I intend to do him injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury whether I mean to produce an injury or not; and if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces?" So here the bank wrongfully refused to pay the checks of the appellee. That refusal was intentional, and without just excuse. There were therefore all the elements of legal malice,although there might have been no intention to injure the appellee. See Starkie Sland. & Lib. 191; Com. v. Bonner, 9 Metc. (Mass.) 412. Ill. Sup. Ct., Oct. 31, 1891. Schaffner v. Ehrman. Opinion by Wilkin, J.

the question, but they seem to be uniformly to the effect that more than mere nominal damages are in such cases recoverable. The leading case is that of Rolin v. Steward, 14 C. B. 595. In that case there was no evidence of malice in fact, nor of special damages, but the jury were told that they ought not to confine their verdiet to nominal damages, but should give the plaintiff's such separate damages as they should judge to be a reasonable compensation for the injury they must have sustained from the dishonoring of their checks. Aud the jury accordingly, by their verdict, gave substantial dainages, on which judgment was rendered by the trial court. On appeal all the judges concurred in holding that the direction to the jury was correct, the case being likened to that of a slander of a person in the way of his trade. Williams, J., said: "I think it cannot be denied, that if one who is not a trader were to bring an action against a bank for dishonoring a check at a time when he had funds of the customer's in his hands sufficient to meet it, and special damages were alleged and proved, the plaintiff would be entitled to recover substantial damages; and when it is alleged and proved that the plaintiff is a trader, I think it is equally clear that the jury, in estimating the damages, 'may take into their consideration the natural and necessary consequences which must result to the plaintiff from the defendant's breach of contract, just as in the case of an action for slander of a person in the way of his trade the action lies without proof of special damages." This case was cited with approval in Prehn v. Bank, L. R., 5 Exch. 92, in which Martin, B., says: "Now, with respect to damages in general, they are of three kinds: First, nominal. The second kind is general damages, and their nature is clearly stated by Creswell in Rolin v. Steward, 14 C. B., to be such as the jury may give when the judge cannot point out any measure by which they are to be assessed, except the opinion and judgment of a reasonable man. Wood's Mayne on Damages (1st Am. ed.), page 12, section 8, the rule is announced that "when there may be an injury existing at present, though unascertainable, or to arise hereafter, and for which no further action could be brought, substantial damages might be given at once," citing case of Rolin v. Steward, supra. And text-writers, without exception, seem to approve of the rule announced in that case. See Bish. Non-Cont. Law, § 49; 1 Suth. Dam. 129; 3 Am. & Eng. Enc. Law, 226, where it is said: 'The depositor, by proving special loss, may recover special damages from the bank for its breach of duty, but if unable to do so, he may recover such temperate damages as will be a reasonable compensation for the injury he has sustained," citing authorities. Where a bank refuses to honor a check of its depositor without legal cause, the latter is entitled to recover substantial damages. Patterson v. Bank, 130 Penn. St. 419. In the Pennsylvania case the point is directly decided. The ground upon which substantial damages is there held recoverable is that of public policy. We have also examined the text-books on the subject of banks and banking within our reach, and find that they uniformly, so far as they treat of the subject, approve of the rule as announced in Rolin v. Steward, supra. We are of the opinion that the conclusion in that case was reached by proper reasoning. It is well understood that in an action of slander by a person for the speaking of slanderous words of him in the way of his trade, the fact that he is a trader takes the place of special damages. To returu a check marked "Refused for want of funds" to the holder, especially through a clearing-house, certainly tends to bring the drawer of that check into disrepute as a person engaged in mercantile business; and it needs no argument to show that a single refusal of that kind might often, and frequently does, bring ruin upon a business man; and yet it is no more possi

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CARRIERS AGES.-A wife can recover damages for distress of mind occasioned by negligent delay of a railroad company in the transportation of her husband's corpse. We are unable to distinguish in principle this case from those in which recoveries against telegraph companies have been allowed for failure to deliver with promptness messages announcing the death or mortal illness of near relatives. Such cases are exceptional. As a rule, mental suffering is not an element of the damages which are recoverable for breach of a contract, or in an action for a tort founded upon a right growing out of a contract. Ordinarily the object of sending a telegraphic message announcing the death or sickness of a relative is to afford the person to be benefited the solace that may result from being present during the last illness of the relative, or attending his obsequies, as the case may be. The direct result of the failure to perform the duty of delivering the message being to deprive the person addressed of this solace, and to cause distress of mind, it is not unreasonable that he should have his compensation therefor. It is upon this principle, in my own opinion, that the decisions of this court in the telegraphic cases are to be maintained. The same principle applies in this case. But however that may be, we see no valid reason why, if a recovery can be had for mental suffering resulting from the failure to deliver a telegraph message announcing the death, like damages should be here denied. In the case of Telegraph Co. v. Simpson, 73 Tex. 422, the resulting injury was somewhat similar to that in the present case. But it is insisted that the mental suffering for which a recovery was sustained in that case was the immediate result of the delay in securing the money which the company had contracted to deliver. Some disagreeable mental emotion is the ordinary result of the failure to pay or deliver money according to promise. But the measure of damages for the breach of the contract is the money to be paid or delivered, with the interest. It was the fact that the plaintiff was detained in a distant State, watching over the body of her deceased husband, which sustained the recovery in that case. Tex. Sup. Ct., Oct. 30, 1891. Hale v. Bonner. Opinion by Gaines, J.

DELAY IN DELIVERING CORPSE- DAM

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