about to venture on an untried experiment. They not only see that the system of election will not do, but they also see how admirably the system of nomination succeeds in England and in the United States supreme court."

We last week spoke of the decision of Judge Drummond, that a failure for fourteen days to pay a single piece of commercial paper, was an absolute act of bankruptcy. Since then we have noticed a recent decision by Judge Blatchford, in which it is quite strongly intimated that the suspension of payment intended by the bankruptcy act was a general suspension. In the case before him, the alleged bankrupt had refused for fourteen days to pay a note held by the petitioner, on the ground that he had a good defense to it. An action was brought in the State court, and was pending at the time the petition was made. Judge Blatchford held, that the debtor had not suspended payment and could not therefore be put in bankruptcy.

It is a matter worthy of consideration whether the people of this State are not uselessly spending money for the annual publication of the laws in the newspapers. The statute provides for such publication in two papers in each county. The cost to each county will average at least $2,000, making an aggregate for the State of $120,000. It is unquestionably desirable to have the laws speedily and thoroughly published, but that is not accomplished, in fact, by the present method. The theory on which that method was based is, that the newspapers would be able to publish the acts of the legislature as rapidly as passed, and thereby furnish to the people information of the laws before they were accessible in any other form. But the newspapers do nothing of the kind. They consult entirely their own convenience, and with but few exceptions, hardly finish the printing of the laws of one session before the commencement of the next. Indeed, we noticed, in January last, and while the legislature was in session, that some of the papers were still printing the statutes of the previous year. The general statutes of the last session were all published in the LAW JOURNAL, in regular order, and in a manner convenient for preservation and reference, as early as July, and directly after the last act had been signed by the governor, and this without any compensation from State or county. The annual volume of Session Laws was issued in August, so that the laws are easily accessible to every man, woman and child in the State. But these county papers will go on printing the laws for three or four months yet, and will reap for their labors a reward sufficient, six times over, to give to every town, county and State officer a bound copy of the Session Laws, and to place a copy in every school district library in the State.

NOTE OF CASE.

In Tiffany v. Darby, bankrupt, decided by the United States Supreme Court at the last term, a somewhat more liberal view was taken of the bankrupt act than that expressed by Judge Drummond. The action was brought to avoid the sale of real estate, made for a sufficient consideration by the bankrupt, within six months of the decree of bankruptcy. The plaintiff claimed that the sale was void under section 35 of the bankrupt act. The court said:

"There would seem to be no difficulty in ascertaining the meaning of congress on the subject embraced in this section, in its application to this case. Clearly all sales are not forbidden. It would be absurd to suppose that congress intended to set the seal of condemnation on every transaction of the bankrupt which occurred within six months of bankruptcy, without regard to its character. A policy leading to such a result would be an excellent contrivance for paralyzing business, and cannot be imputed to congress without an express declaration to that effect. The interdiction applies to sales for a fraudulent object, not to those with an honest purpose. The law does not recognize that every sale of property by an embarrassed person is necessarily in fraud of the bankrupt act. If it were so, no one would know with whom he could safely deal, and besides, a person in this condition would have no encouragement to make proper efforts to extricate himself from difficulty.

"It is for the interest of the community that every one should continue his business, and avoid, if possible, going into bankruptcy, and yet how could this result be obtained if the privilege were denied a person who was unable to command ready money to meet his debts as they fell due, of making a fair disposition of his property in order to accomplish this object.

"It is true he may fail, notwithstanding all his efforts, in keeping out of bankruptcy, and in that case any

sale he has made within six months of that event is subject to examination. If it shall turn out on that examination that it was made in good faith, for the honest purpose of discharging his indebtedness, and in the confident expectation that by so doing he could continue his business, it will be upheld. On the contrary, if he made it to evade the provisions of the bankrupt act, and to withdraw his property from its control, and his vendee either knew, or had reasonable cause to believe, that his intention was of this character, it will be avoided. Two things must concur to

bring the sale within the prohibition of the law: the fraudulent design of the bankrupt and the knowledge of it on the part of the vendee, or reasonable cause to believe that it existed."

It is thought that Hon. Joseph F. Wiggin, judge of the probate court of Rockingham county, New Hampshire, will be appointed to a seat on the bench of the supreme court of that State.

Willard Phillips, LL. D., a widely known member of the Massachusetts bar, and formerly one of the editors of the North American Review, died in Cambridge, Mass., a day or two since. He has written valuable works on insurance, patents, and also on various topics connected with commercial law.

LIABILITY OF TELEGRAPH COMPANY.

SUPREME COURT OF ILLINOIS.

TYLER V. THE WESTERN UNION TELEGRAPH Co. Plaintiff delivered to defendant, at Chicago, to be forwarded to New York, a message, written upon one of the blanks of the company, in which it was provided that the company would not be responsible for any error in the transmission or delivery of an unrepeated message beyond the amount paid for sending. The message, as written, directed plaintiff's agent to "sell one hundred (100) Western Union," as delivered to plaintiff's agent in New York, it directed him to "sell one thousand (1,000) Western Union;" Plaintiff's agent sold thereupon one thousand "Western Union," at a loss to the plaintiff, by reason of the mistake, of over $700. In an action of assumpsit to recover the amount so lost, held, that the company was liable.

Opinion by Breese, J.

This was an action of assumpsit to recover damages of the Western Union Telegraph Company, for alleged carelessness in transmitting a dispatch for appellants from Chicago to the city of New York. The delivery of the message at the company's office, in Chicago, to the operator there, by one of the plaintiffs, is alleged, and proper averments of negligence and carelessness, on the part of the company, are found in the declaration, and proper averments of damage.

The defendant pleaded non-assumpsit, with notice of special matter.

It appears the message was written on one of the blanks prepared by the company, which contained the following stipulations:

In order to guard against and correct, as much as possible, some of the errors arising from atmospheric and other causes appertaining to telegraphy, every important message should be repeated by being sent back from the station at which it is to be received, to the station from which it is originally sent. Half the usual price will be charged for repeating the message, and the companies will not hold themselves responsible for errors or delays in the transmission or delivery, nor for the non-delivery of repeated messages beyond two hundred times the sum paid for sending the message, unless a special agreement for insurance be made in writing, and the amount of risk specified on this agreement, and paid at the time of sending the message. Nor will these companies be responsible for any error or delay in the transmission or delivery, or for the nondelivery of any unrepeated message, beyond the amount paid for sending the same, unless, in like manner, specially insured and amount of risks stated hereon, and paid for at the time.

No liability is assumed for errors in cypher, or obscure messages, nor for any error or neglect by any other company over whose lines this message may be sent to reach its destination, and these companies are hereby made the agents of the sender of this message to forward it over the lines extending beyond those of these companies. No agent or employee is allowed to vary these terms, or make any other verbal agreement, nor any promise as to the time of performance, and no one but a superintendent is authorized to make a special agreement for insurance. These terms apply through the whole course of this message on all lines by which it may be transmitted."

The message, when written, and as delivered to the operator at Chicago, read as follows: " Dated Chicago, October 29, 1866. To J. H. Wrenn or A. T. Brown. Sell one hundred (100) Western Union. Answer price. T., U. & Co." As delivered to Wrenn, in New York, the message read as follows: "Dated Chicago, Illinois, to J. H. Wrenn, care Gillman, Son & Co. Sell one thousand (1,000) Western Union. Answer price. T., U. & Co."

It is averred in the declaration that Wrenn under

stood the words "one hundred Western Union," to mean one hundred shares in the Western Union Telegraph Company, which number of shares, it appears, the banking-house of plaintiffs was then carrying for a customer.

On receipt of the message, Wrenn sold one thousand shares of this stock, and to do so was obliged to go into the market and purchase nine hundred shares, to replace which he had to buy on a rising market the same number of shares, so that the difference in the selling and buying price amounted to seven hundred and twenty-nine dollars and seventy-seven cents, which amount was wholly lost to the plaintiffs.

The court, on its own motion, having refused instructions asked by plaintiffs, charged the jury as follows:

"The dispatch in question in this case being sent upon one of the printed blanks of defendants, the printed heading of that blank constitutes a contract between the parties, by the terms of which both parties are bound, and as one of these terms is, that the defendants are not liable for any error in the transmission of an unrepeated message beyond the amount paid for sending the same, the plaintiff can only recover that amount, with interest on the same from the time it was paid to this time in this suit. Transmission means all that happens between the receipt of the dispatch here from the plaintiffs and its delivery to them in New York."

It was admitted the message in question was not repeated. The jury found for the plaintiffs, assessing their damages at two dollars and sixty cents, being the cost of the message, with interest. A motion for a new trial was overruled, and judgment rendered on the verdict, to reverse which the plaintiffs appeal, and make several points, one of which is, the refusal of the instructions asked by them on the trial of the cause. Those instructions are as follows:

"If the jury believe, from the evidence, that the dispatch sent by Tyler, Ullman & Co. to John H. Wrenn, on the 29th day of October, 1866, was erroneously and negligently read by the operator in Chicago, and that said dispatch was transmitted to said Wrenn in the words as received by him, on account, and as the result of such erroneous and negligent reading by the operator in Chicago, then the verdict must be for the plaintiffs, if they suffered pecuniary loss by such error and negligence.

"If they believe, from the evidence, that the dispatch sent by Tyler, Ullman & Co. to John H. Wrenn, on the 29th day of October, 1866, was correctly transmitted from Chicago to New York, and was correctly received in New York, at the office of the said defendants, yet if they believe, from the evidence, that said dispatch, although correctly received by defendants, was erroneously and negligently transcribed by their agents in New York, and was delivered by said agents to said Wrenn, so erroneously and negligently transcribed, and that such error caused any pecuniary loss and damage to the plaintiffs, then the verdict must be for the plaintiffs.

"If they believe, from the evidence, that a mistake was made in transmitting the message, through the gross negligence of defendants or their servants, and that plaintiffs suffered damage by reason of such mistake in transmitting said message, the defendants are responsible for such damage, although the jury may believe, from the evidence, that plaintiffs used one of the forms of defendants having the terms printed at the top, as shown by the form copied in the notice accompanying defendants' plea, and that said plaintiff's assented and agreed to such terms and did not require said message to be repeated, or its correct transmission insured.

"That plaintiffs were not bound by the terms printed at the top of the forms commonly used by defendants, as set out in the form copied in defendants' notice accompanying their plea, if they delivered their message to defendants for transmission by telegraph, and defendants accepted it for that purpose without plaintiffs' consent or agreement to be bound by such terms."

These instructions, in connection with that given by the court, open up the merits of this controversy, and we have given to the question raised by them full consideration. It is a case of the first impression in this court, requiring us to examine all the authorities cited, and such others as are within our reach, and we find them not entirely harmonious.

It is contended by appellants that telegraph companies are common carriers, and under the same commonlaw liabilities.

In the earlier cases reported, they were so held. McAndrew v. The Eclectic Telegraph Co., 33 Eng. L. & Eq., decided in 1855. It was also held they could restrict their liability by contract, and that the paper containing the message, signed by the plaintiff, which was identical with the one in this case, was such contract. They were also held to be common carriers in Parks v. Alta Cal. Telegraph Co., 13 Cal. 422, decided in 1859. The counsel for the company argued against this proposition, and contended that the rules of the common law governing common carriers did not apply to telegraph companies. He insisted they could not be regarded as insurers, for the reason that a message is without value.

The court said there was no difference in the general nature of the legal obligation of the contract between carrying a message along a wire and carrying goods or a package along a route. The physical agency may be different, but the essential nature of the contract is the same. The breach of contract in one case or the other is, or may be, attended with the same consequences, and the obligation to perform the stipulated duty is the same in both cases. The importance of the discharge of it in both respects is the same. In both cases the contract is binding, and the responsibility of the parties for the breach of duty is governed by the same general rules.

Strong reasons might be urged in favor of holding these companies to the severe liability of common carriers, but the current of authority, at this time, is not, as admitted by appellants, in that direction. While their liability is held to be analogous to that of common carriers, who are insurers of the safe delivery of the articles intrusted to them, it is considered, in view of the means employed by telegraph companies to transmit messages, and their liability to sudden accidents which cannot be foreseen and provided against, to hold them as insurers of the safe delivery of every message intrusted to them, would be too rigid a rule. Cases so holding, hold, nevertheless, that they are liable for a failure to exercise the highest degree of diligence and skill in the performance of their duty. The case of Rittenhouse v. The Independent Line of Telegraph, 44 N. Y. 263, is one of this description. There it was held, the failure to transmit a message in the form in which it was received by the operator, was prima facie negligence, for which the company is liable, and the onus is on the company to show the mistake occurred by no fault of their own. This case came up from the court of common pleas, and is reported in 1 Daly, 474, and was an unrepeated message. To the same effect is New York and Washington Printing Telegraph Company v. Dryburg, 35 Penn. 298. This action was in tort, and brought by the receiver of the message. The court say: The wrong of which the plaintiff complained consisted in sending him a message different from that which they had contracted with Le Roy to send. That it was a wrong is as certain as that it was their duty to transmit the message for which they were paid. Though

telegraph companies are not, like carriers, insurers for the safe delivery of what is intrusted to them, their obligations, as far as they reach, spring from the same sources, the public nature of their employment, and the contract under which the particular duty is assumed. One of the plainest of their obligations is to transmit the very message received. They further say the company claimed that their operator was a skillful and careful one. Then his negligence, in this instance, was the more apparent and inexcusable. In Elwood et al. v. The Western Union Telegraph Company, 45 N. Y. 549, the court said the agent was placed in the office and in the control of the instruments to use them in transmitting messages for a compensation. If the agent performed the duty in a negligent manner, whereby the plaintiff was injured, the principal is clearly liable. Transactions of the most important character are daily carried on by means of telegraphic communication, and the confidence which the public is invited to, and does, repose in the care with which the proprietors of these lines conduct the business, is a source of large remuneration to such proprietors. They have a corresponding degree of responsibility, and must be held to the exercise of such care and caution as it is in their power to employ, in order to avoid being made the instrument of deception and fraud.

Another class of cases holds these companies are bound to the exercise of reasonable diligence and skill. Washington and New Orleans Telegraph Co. v. Hobson & Son, 15 Grattan, 122. In this case the declaration did not allege negligence on the part of the company, and one instruction, that the defendants were not responsible as common carriers, but only as general agents, for such gross negligence as in law amounts to fraud, was not authorized by the pleadings, and was properly refused. In Ellis v. The American Telegraph Co., 13 Allen, 226, the court said it would be manifestly un-* reasonable and unjust to annex to a business of such a nature the liability of a common carrier, or to require that those engaged in it should assume the risk of loss and damage arising from causes the operation of which they could neither prevent nor control. But, although they ought not to be held to such a standard of diligence, they are not exempt from all responsibility for a want of fidelity and care in the exercise of the employment which they undertake to carry on. There can be no doubt that, in the ordinary employments and occupations of life, men are bound to the use of due and reasonable care, and are liable for the consequences of carelessness or negligence in the conduct of their own business to those sustaining loss or damage thereby. We can see no reason why this rule is not applicable to the business of transmitting messages by telegraph. The court then comments on the efficacy of the regulation of the company requiring a message to be repeated, and hold it is a reasonable regulation. In Western Union Telegraph Co. v. Carew, 15 Mich. 525, the court say: This is not a case which calls upon us for laying down the rule which must be held to govern as to the degree of skill, care and diligence to be required in the transmission of messages. But, doubtless the use of good apparatus and instruments would be required, and reasonable skill, and a high-perhaps the very highest-degree of care and diligence in their operation; and when an error has occurred in the transmission of a message, it may be found that they ought to be held prima facie guilty of negligence, the onus of proof resting upon them to show diligence, the means for doing this being peculiarly within their knowledge

and power. Other cases on this point might be cited: Birney v. New York and Washington Telegraph Company, 18 Md. 341; Breese et al. v. United States Telegraph Company, 45 Barb. 275. All these cases hold, as do the following, that these companies may limit or modify their common-law liability by stipulations, such as given in evidence in this case. Wann v. Western Union Telegraph Company, 37 Mo. 472; Camp v. Western Union Telegraph Company, 1 Metc. (Ky.) 164. This last case holds, when a message is not repeated it will be regarded as sent at the risk of the sender, and the company will not be liable for damages resulting from a mistake not occasioned by negligence or the want of skill of the agents of the company.

An examination of the decided cases shows that the law applicable to telegraph companies is in an unsettled condition. It must, however, be conceded, that there is great harmony in the decisions that these companies can protect themselves from loss by contract, and that such a regulation as the one under which appellees defended is a reasonable regulation, and amounts to a contract.

We are not entirely satisfied with the conclusion announced in some of these decisions. Whether the paper furnished by the company, on which a message is written and sigued by the sender, is a contract or not, depends on circumstances. In an analogous case in this court, Adams Express Company v. Haynes, 42 Ill. 19, and Ill. R. R. Co. v. Frankenberg et al., 54 id. 88, it was held, the simple delivery of a receipt to the shipper is not conclusive upon the latter. Whether he had knowledge of its terms, and assented to its restrictions, is for the jury to determine as a question of fact, upon evidence, aliunde, and all the circumstances attending the giving the receipt are admissible in evidence to enable the jury to decide that fact. The receipt given by the company in this case was declared on its face to be a contract, and was as full for such purpose in the terms employed as is the form in the case now before us. It was a question for the jury in that case, but in this case the court undertook to determine the question and decide the fact. We think this was error. We do not see why the same rule should not apply to telegraph companies as is applied to express companies and railroad companies. In regard to the latter, it is always held, whether or not such a regulation was brought to the notice of the shipper so as to fix knowledge upon him, to be a fact for the jury. Brown v. Eastern R. R. Co., 11 Cush. 97. Slight evidence of acceptance or assent to such regulation would, no doubt, suffice, but it is for the jury to determine.

In the various, and somewhat conflicting, decisions of the courts on the question presented, we are inclined to hold, admitting the paper signed by the plaintiffs was a contract, it did not, and could not, exonerate the company from the use of ordinary care and diligence, both as to their instruments and the care and skill of their operators. The plaintiffs having proved the inaccuracy of the message, the defendants, to exonerate themselves, should have shown how the mistake occurred. This proof was not in the power of the plaintiffs, and was in the power of the defendants. In the absence of such proof the jury would be authorized to presume a want of ordinary care on the part of defendants. If the error was caused by atmospheric disturbances, or a momentary displacement of the wires, the defendants knew it, and ought to show it. In the absence of any proof on their part, the jury

should be told the presumption was, a want of ordinary care on the part of the company. The court, however, refused to instruct the jury that the company was liable for gross negligence. It is the settled doctrine of this court that a railroad company cannot purchase exemption from gross negligence, or protect itself against such; that it would be against public policy so to contract. We see no reason why the rule should not be the same in regard to telegraph companies, for they are, like railroads, public institutions, having duties to perform to the public. On general principles, we must hold the company, notwithstanding the special conditions relied upon, is responsible for mistakes happening by its own fault, such as defective instruments, or carelessness, or unskillfulness of their operators, but not for mistakes occasioned by uncontrollable causes. Sweatland v. Ill. and Miss. Telegraph Co., 27 Iowa, 433. This company sought the patronage of the public in the exercise of their employment, and assured that public they would use at least ordinary care and diligence in their business, both as to their instruments and as to the skill of their operators. It cannot be claimed the contract in question was designed to relieve them from that, nor should it. They assure the public they have the most approved instruments and employ skillful operators, and they further assure the public that due care and diligence shall be exercised in conducting their business. If the conditions relied upon were designed to shield the company from consequences flowing from a want of skill of operators, or insufficiency of instruments, which would be gross negligence, such a condition would be contrary to public policy, and void. The pretext for imposing the conditions in question is, "to guard against, and correct as much as possible, some of the errors arising from atmospheric and other causes appertaining to telegraphy," etc. In these "other causes," it cannot be allowed to embrace defective instruments or unskillful operators, for the company are bound by their obligations to the public to provide the best, certainly to provide operators of sufficient skill and intelligence, and instruments of the most approved construction. "Other causes" must mean only such causes as appertain, specially, to the business of telegraphy. Defective apparatus, and unskillful operators, appertain to business and public employments, other than telegraphy.

A railroad company cannot be excused on failing to employ competent engines, and servants to manage and conduct them and the trains to which they are attached. If a loss happens by reason of insufficient engines, or by the incompetency of their employees, they are liable. We cannot hold that the printed conditions in evidence in this case protect this company from losses and damage occasioned by causes wholly within their own control. They must be confined to mistakes due to the infirmities of telegraphy, and which are unavoidable. A point is made by appellees, that the negligence of appellants materially contributed to the loss incurred. This is a question of fact for the jury, and if it is established, they cannot recover.

But we fail to discover any evidence of contributory negligence on the part of the plaintiffs. And as to the receiver of the message, it was not his duty to telegraph back to ascertain the correctness of the message. The company was bound to send the message correctly in the first instance.

It is urged by appellees' counsel, in his comments on the instructions asked by plaintiffs below, that the first two were properly refused by the court, for the reason

there was no evidence on which to base them. There may have been no direct testimony on this point, but a jury is permitted to infer a fact from circumstances proved to them. It was in proof by John H. Wrenn, and not attempted to be contradicted or questioned, that so soon as he received a telegram from Chicago, which he did on the 30th of October, stating that an error had been committed, and ordering him to cover the extra nine hundred shares, he went immediately to the office of the company in New York and asked them to correct it. They told him the error had not occurred at their office, but in Chicago. We think the attention of the jury was properly called by these instructions to this testimony, as it was not contradicted. It was in the power of the defendants to show the mistake did not occur at the Chicago office, by producing the original, which was in their possession. This they failed to do. If the fact was, the error occurred in the Chicago office, then the plaintiff's right to recover is unquestionable, for there is no excuse for failing to start a message correctly. That fact would show a defective instrument or an unskillful operator, and for these the company would not be exonerated.

Another point is made by appellees, not undeserving notice, and that is, the want of knowledge on the part of the company, of the importance or value of the message. It is a sufficient answer to this to say that, be a message of great or trifling importance, the company is bound to transmit it literally, at least, according to some of the authorities, to use the highest degree of skill and care in their efforts so to do. But the dispatch disclosed the nature of the business as fully as the case demanded. A similar case is reported in 55 Penn. 262, United States Telegraph Co. v. Wenger. The dispatch was, Buy (50) fifty Northwestern, fifty (50) Prairie du Chien, limit forty-five (45)." It was held, this dispatch disclosed the nature of the business to which it related, and that a loss might occur if it was delayed. In this case a great loss has occurred by incorrect transmission.

66

As to the point that appellees should have had an opportunity to replace the stock before Wrenn went into the market for that purpose, it is apparent from Wrenn's testimony the company had such opportunity, for he testifies he went to them in New York and requested them to correct the error. On their refusal, on the pretext that the error occurred at the Chicago office, he then purchased.

We have carefully read and considered all that has been written on the subject of the art of telegraphy, which our library can furnish, and we are not satisfied with the grounds on which a majority of the decisions of respectable courts are placed.

In the first place, modern telegraphy is not now an infant art. It sprang into existence from the teeming brain of one now no more, who had the boldness to attempt to render subservient to the wants of man the most subtle element of nature, and by its mysterious potency convey ideas, wants and wishes to the farthest limits of civilization, and with the speed of its kindred element. In its infancy it scarcely ever failed to perform its office.

Thirty years have witnessed vast improvements in the art, a higher knowledge of the subtle agent called into use more finished instruments and almost perfect skill in those who operate them, so that, setting aside atmospheric causes, which have not yet been provided against, it may be asserted as an incontestible truth that, given a line of wire properly established, the

most perfect instruments, and skilled operators, who exercise their skill with proper care, a message started at Chicago for New York is as sure to reach its destination, exactly in the words and figures in which it was started, as the lightning is sure to strike the object which attracts it. Intelligent and skillful operators all admit this. There is no reason, the atmosphere being right, and all else right, why a message, correctly started, should not be correctly transmitted along the line to the end of the line, no matter how many hundred miles asunder may be the point of its departure from the point of its reception. If this be so, then the efforts made by the courts to excuse those who undertake this business should not be imitated or encouraged by this court. Again, it is said by enlightened courts, whose opinions we have quoted, that these forms furnished by the several companies, and they are all alike, when used by the sender of a message, and signed by him, become a contract between him and the company, by the terms of which he must abide. The court told the jury in so many words, that this form signed by appellants was a contract between these parties, by which their liability must be gauged. We have, in this opinion, said some thing on this point-that it was for the jury to determine whether it was, or not, a contract knowingly executed by the party, with the intention to be bound by it. We now desire to say it is not a contract binding in law for these reasons: Our statute makes it the duty of telegraph companies to transmit all messages committed to them for purposes of transmission in the order in which they are received; they are bound by law to serve all who apply; they are public institutions, established by public law, and to whom is granted the right of eminent domain. Persons who unlawfully injure or molest, or destroy any of their lines, posts, piers, etc., on conviction are deemed guilty of a misdemeanor, and liable to a fine, or imprisonment in the penitentiary, or both. Failing to transmit a message, or suppressing a message, or making known its contents to any one other than the party to whom it is addressed, is deemed a misdemeanor, and punished by a fine not exceeding $1,000. By section four of the act such companies have the power to purchase, receive and hold such real estate as may be necessary, etc., and may appoint such directors, officers and agents, and employ such servants, and make such prudential rules, regulations and by-laws, as may be necessary in the transaction of the business, not inconsistent with the laws of this State or of the United States. Laws of 1849, p. 188. This act imposes upon these companies duties to perform to the public, which they must perform, nolens volens. For their performance they are entitled to a reasonable compensation, the tariff of which they adjust themselves, under the power granted by the fourth section. When this tariff is paid by the sender of a message, the duty of the company begins. This payment is the consideration for the performance of its duty in each particular case. On the assumption, then, that it is the duty of the company to transmit correctly the message for which they have received compensation, where, in law, arises any obligation on the part of the sender to repeat the message? The fact is conceded that a telegraph company is the servant of the public, and bound to act whenever called upon, their charges being paid or tendered. They are in that respect like common carriers, the law imposing upon them a duty which they are bound to discharge. The extent of their liability is to transmit correctly the message as delivered. This is conceded. But it is decided by all