reasonable compensation must imply that the same compensation is accepted always for the same service, else it could not be reasonable, either absolutely or relatively." In Hutchinson on Carriers, 243, after a review of the cases, it is said; "Hence, we may conclude that in this country, independently of statutory provisions, all common carriers will be held to the strictest impartiality in the conduct of their business, and that all privileges or preferences given to one customer, which are not extended to all, are in violation of public duty." An examination of the authorities cited by these learned authors leaves no doubt that a common carrier has no right to make unreasonable charges for his services, and that he cannot lawfully make unjust discrimination between his customers. It is strenuously contended by counsel for appellant that it is not charged in the petition as a substantial fact that the rate charged the plaintiffs was unreasonable. It is distinctly averred that the rate charged the plaintiffs "was unreasonable, and is and was an unjust discrimination." This appears to us to be a sufficient answer to the argument of counsel the effect that the action is founded solely upon the fact of mere difference in rates. It appears to be conceded that the defendant had no right to exact unreasonable rates or to make unjust discriminations between shippers which in effect compels one shipper to pay an unreasonable rate. The above principles of law may be said to be fundamental, and it is only necessary to apply the facts to reach the conclusion that the rates paid by the plaintiffs were unreasonable and unjust discrimination. It is not claimed that the favored shippers were objects of the charity of the defendant. The payment of the rebates cannot be designated as "alms giving." It does not appear that the concessions were made because the favored shippers furnished more shipments than the plaintiffs. The fact is that some of the others shipped less than the plaintiffs. In short there is no reason for the discrimination. It is true that it is claimed that the rebate shippers bought cattle and hogs from territory in which shipments would ordinarily be made upon other railroads, but the evidence shows that the plaintiffs' field of operation was about the same as the other shippers. It does not appear that the rebates were allowed merely at times when there were cut rates or a war of rates between the defendant and rival railroad lines. The rebates were paid regularly for years, with but short intervals. It is to be supposed that any court or jury under this state of facts would solemnly find, declare, and adjudge that, after paying the rebate, the defendant did not have a reasonable compensation for the service? The only finding that can in any fairness be made is that, after deducting the rebate, the rate was reasonable; and that the exaction from the plaintiffs was unreasonable, and the discrimination against them unjust. And the fact that it was secretly done, and that it appeared to be necessary to carry it on by lying and deceit, surely does not tend to commend such a course of dealing to fair-minded men. We have been cited to a number of adjudged cases, by counsel for the respective parties, and we think we may safely say that not one of them is in conflict with the views we have herein expressed upon this question. On the contrary, and in support of our conclusion, see Sharpless v. Mayor, 21 Pa. St. 147; New England Exp. Co. v. Maine Cent. R. Co., 57 Me. 188; McDuffee v. Railway Co., 52 N. H. 430; Messenger v. Ry. Co. 36 N. J. Law 407,

TELEGRAPH COMPANIES-LIMITING LIABILITY-NEGLIGENCE-DAMAGES.-The power of a telegraph company to limit its liability was well considered by the Supreme Court of Arkansas, in Western Union Telegraph Co. v. Short., 14 S. W. Rep. 649. There it was held that an agreement between the sender of a telegram and the company, that the company shall not be liable for mistake or delays in the transmission or delivery unless it is repeated, whether happening by negligence of its servants or otherwise, beyond the amount received for sending the same, is void as against public policy. Battle, J., says:

Common carriers of goods and telegraph companies are not subject to the same rule of responsibility. The common carrier is held to the strictest accountability for the safe transportation and delivery of property intrusted to him for safe carriage. In the absence of a contract or regulation limiting his liability, he is treated as an insurer against all losses not caused by the act of God or the public enemy. On the other hand, in the absence of a contract or regulation fixing the liability of telegraph companies, they are not held responsible as insurers of absolute safety and accuracy in the transmission of messages as against all contingencies, but, holding themselves out to the public ready to transmit all messages delivered to them, they are bound to furnish suitable instruments and competent servants, and to use ordinary care and diligence in transmitting messages; and for any failure to use such care and diligence they are responsible to those sustaining loss or damage thereby. They are, however, not liable for the want of any skill or knowledge not reasonably attainable in the present state of telegraphy, "nor for errors resulting from the peculiar and unknown condition of the atmosphere, or any agency, from whatever source, which the degree of skill and care spoken of is insufficient to guard against or avoid." Telegraph Co. v. Davis, 41 Ark. 79; Fowler v. Telegraph Co., 80 Me. 381, 15 Atl. Rep. 29; 2 Shear. & R. Neg. (4th ed.) §§ 537, 539, and cases cited.

Telegraph companies are public agents, and exercise a public employment. They are chartered for public purposes, and are vested with the power of eminent domain, which they cannot lawfully exercise if they are not public agents. By virtue of their public employment, it is their duty, for a reasonable consideration, to receive and transmit all messages over their wires with that integrity, skill, and diligence which appertain to their business. "They are a commercial necessity. Business cannot be transacted without them only at a great disadvantage. In most places there is no choice as to lines, and, where there is, it is so limited that a virtual monopoly exists. On the other hand, the occasion for sending a message often come suddenly, or with so short a notice," as to compel the sending of the message by telegraph without delay, or the suffrance of pecuniary loss by the failure to do so. Often the customer cannot afford to wait, and must submit to the terms of the telegraph company. They do not stand upon an equality. The public is compelled to accept the services of the telegraph company, and to rely upon it discharging its duty. In this and other respects the employment of the tele

graph company and the common carrier of goods are strongly analogous. The business in which each are engaged is almost equally important to the public. Vast interests are committed to each, and good faith and diligence in the discharge of the duties of each are essential to the interest of the public. In both cases the demand of a sound public policy alike for. bid any stipulations to relieve them of the duty to use the care and diligence resting upon them. To hold otherwise would be to give license and immunity to carelessness and negligence on the part of each, and would be disastrous to the interests of the public. Smith v. Telegraph Co., 8 Amer. & Eng. Corp. Cas. 15; Telegraph Co. v. Blanchard, 68 Ga. 299; Sweatland v. Telegraph Co., 27 Iowa, 433; Harkness v. Telegraph Co., 73 Iowa, 190, 34 N. W. Rep. 811; Bartlett v. Telegraph Co., 62 Me. 209; Express Co. v. Caldwell, 21 Wall. 269; Telegraph Co. v. Meredith, 95 Ind. 93; Telegraph Co. v. Tyler, 74 Ill. 168; Tyler v. Telegraph Co. 60 Ill. 421; Candee v. Telegraph Co., 34 Wis. 471; Thompson v. Telegraph Co., 64 Wis. 531, 25 N. W. Rep. 789; Gray, Tel. §§ 46-52; 2 Redf. R. R. (6th ed.) pp. 342, 345, 346, §§ 12, 16, 17; 2 Shear. & R. Neg. (4th ed.) § 553; 8 Amer. & Eng. Corp. Cas. 44, note and cases cited; 14 Fed. Rep. 720, and cases cited; 2 Thomp. Neg. pp. 841, 843, § 6.

In this case, the agreement between the sender of the message and the company was that the company should not be liable for mistakes or delays in the transmission or delivery, or for non-delivery, of the message sent, unless it was repeated, whether happening by negligence of its servants, or otherwise, beyond the amount received for sending the same. By this stipulation the company elearly undertakes to relieve itself of all liability for negligence, the message not having been repeated, and is contrary to public policy, and void. It is true that many authorities have held that such an agreement is "binding upon all who assent to it, so as to exempt the company from liability, beyond the amount stipulated, for any cause except for willful misconduct or gross negligence on the part of the company." One of the reasons assigned by these authorities for so holding is "the risks and uncertainties attendant on the transmission of messages by reason of electricity, and the difficulties in the way of guarding against errors and delays in the perform. ance of such a service, and the very extensive liability to damages which may be incurred by a failure to deliver a message accurately." But it seems to us that this is not a sufficient reason why such stipulation should be sustained. The telegraph company is only bound to use ordinary care and diligence in transmitting messages, and is not responsible for any errors or failures which such care and diligence are insufficient to guard against or avoid.

The same authorities further hold that the regulation or agreement that the message must be repeated in order to hold the company liable for negligence beyond the amount received for sending the message is a reasonable precaution taken by the company, and binding on all who assent to it. They say: "The repetition of a message may be unimportant. A mistake in its transmission might occasion no serious damage or inconvenience to the parties interested. Whether it would do so or not would be within the knowledge of the sender or receiver, rather than within that of the operator who transmitted it. The latter could rarely be expected to know what would be the consequences of an error in its transmission. It is therefore a most reasonable requisition that it should be left to those who know the occasion, and the subject

of the message, and who can best judge of the consequences attendant upon any mistake in sending it, to determine whether it is of a nature to render a repetition necessary to ascertain its accuracy instead of throwing this burden on the owner or conductor of the telegraph, who cannot be supposed to know the effect of a mistake, or the consequences in damages of a failure to transmit it correctly." This may be true. But, we think, the failure to repeat should not relieve the company of the duty to use due care and diligence in transmitting the message without repetition, and of liability for losses incurred by reason of the failure to do so. The fact that the company could not, from an inspection of the message, know its importance, and forsee the consequences of a failure to send it correctly, or had no notice of the special circumstances under which it was sent, is a matter that ought to affect only the amount of damages for which the company should be held liable.

THE LAW AS TO MARRIED WOMEN IN MISSOURI AS AFFECTED BY THE REVISED STATUTES OF 1889, SECTION 6864.

The status of the feme covert, instead of being fixed by the legislation partially enfranchising the wife, becomes a more difficult question, for the new rights and powers must be adjusted, ordinarily, to old and continuing disabilities. Prior to the statute here in question, only the separate estate of married women could be subjected to their debts in Missouri, and then only in equity, for the proceedings were strictly in rem and a judgment in personam against a married woman was not valid even after the statute of 1875.2 Now, however, the new section makes a married woman for most purposes a feme sole and authorizes a judgment against her without joining her husband, and there would seem to be no reason why any restrictions should remain from the old equity system to prevent the enforcement of common law rules.

A judgment may now be rendered against a married woman on which execution may issue, at least against her separate estate3 and probably against her legal estate; for the object of the statute is to restore her to the powers which she had in the eyes of the law before she married, and not to enable her to do in equity what she could do before.

1 Davis v. Smith, 75 Mo. 219.

The

law, as it stands to-day, enables her to dispense with trustees and to act for herself by the simple and direct means recognized by the law, as if she were unmarried.1

The courts of law should have jurisdiction of all questions arising under the new sections, for rights given under statutes, unless specially declared to be equitable, are cognizable by courts of law,5 and a married woman is as much bound by the decision of a court of competent jurisdiction as an unmarried woman.6

Where a married woman is given the power to contract she may bind her separate estate by any contract which a feme sole can,' and no reason can be advanced why she should not bind property in which she has a dry legal estate. She may, in contradistinction to the liabilities imposed by equity, bind herself personally by a contract of suretyship.8 She is no longer restricted to contracts relating to her separate estate, but may make any contract she pleases, and if the law allows the contract it can be enforced legally, for if she enjoys the rights of a feme sole she must perform the corresponding obligations.10

9

In an action against her, the husband need not be joined, and since the reason has failed he ought not to be joined. It is true the words are permissive, but the purpose is to cut up by the roots the marital rights of the husband in the wife's property and rights of action, and to set her free from the thraldom of the common law in respect thereto, and confer upon her the rights and privileges of an independent legal existence. It would, therefore, be inconsistent with the spirit of the act to construe it as permissive merely and not mandatory," for she has such an independent existence that she may be sued jointly with her husband12 and her estate is 4 Krounskop v. Shortz, 51 Wis. 216.

5 Meyers v. Rahter, 46 Wis. 655; Stockton v. Farley, 10 W. Va. 175.

6 Ratcliffe v. Stretch, 117 Ind. 526.

7 Good v. Moulton, 67 Cal. 536; Kendall v. Johnson, 119 Mass. 251; Springer v. Berry, 47 Me. 336.

8 Roberson v. Queen, 3 Pick. (Tenn.) 445; Sypert v. Harrison, 11 S. W. Rep. (Ky.) 435; Mays v. Hutchinson, 57 Me. 546.

9 Major v. Holmes, 124 Mass. 108; Kenworthy v. Sawyer, 125 Mass. 28; Reed v. Newcomb, 59 Vt. 630; Fairlie v. Bloomingdale, 38 Hun, 220.

10 Boston v. Cumming, 16 Ga. 102. 11 Wright v. Burroughs, 61 Vt. 394.

12 Reed v. Newcomb, 59 Vt. 630.

liable to him as to any other person, 18 though probably she cannot yet, in Missouri, make a valid parol gift to him.14

EDWARD C. WRIGHT.

16 Constantinides v. Walshe 146 Mass. 281. 14 Boughton v. Brand, 94 Mo. 174.

GIFT-DELIVERY.

COCHRANE V. MOORE.

English Court of Appeal, April 28, 1890.

In order to constitute a completed parol gift of personal property capable of being delivered and pass the title to the donee, there must be a delivery of the property.

The

FRY, L. J.: The judgment I am about to read is that of Bowen, L. J., and myself. The question in this interpleader issue arises in respect of a sum of money representing one-fourth of the proceeds of a horse called Kilworth, sold by Messrs. Tattersall. The plaintiff claims the money under a bill of sale executed by one Benzon, comprising this and other horses. defendant claims it under an earlier gift of onefourth of the horse to him by Benzon. The relevant facts, as they appear in the judgment of Lopes, L. J., and in that part of the evidence to which he attached credence, are shortly as follows: The horse was in June 1888, the property of Benzon, and was kept at the stables of a trainer named Yates, in or near Paris, and on the 8th of that month was ridden in a steeplechase by Moore, a gentleman rider. In consequence, as it appears, of some accident, the horse was not declared the winner, and on the same day, according to the view of the evidence taken by the learned judge, Benzon by words of present gift gave to Moore, and Moore accepted from Benzon, one undivided fourth part of this horse. A few days subsequently Benzon wrote to Yates, in whose stables the horse was, and told him of the gift to Moore. But he did not inform Moore, nor did Moore know of any communication to Yates of the fact of the gift. On the 9th of July, 1888, Cochrane advanced £3,000 by way of loan to Benzon, and took from him a promissory note for £3,500, payable on the 9th of August following. On the 16th of July of the same year, Cochrane advanced to Benzon a further sum of £4,000, and took a promissory note for £4,800, payable on the 16th of September. On the 26th of July Cochrane advanced to Benzon two sums of money: One, £1,680, 10s. 11d. (to be paid to one Sherard, a trainer), and £745, making together £2,425 10s. 11d. And on the same day Benzon executed a bill of sale for £10,000, under which Cochrane claims. Kilworth and other horses were included in the schedule to this instrument. It is proved

by the evidence of the witnesses, whom the learned judge believed, that before the execution of the bill of sale, Benzon, with the assistance of a friend, Mr. Powell, was going through the list of horses to be included in the schedule, and that when Kilworth was mentioned Powell spoke of Moore's interest in the horse, and that thereupon a discussion arose as to what was to be done with it, and that Cochrane undertook that it should be "all right." After this the bill of sale was executed by Benzon. On these facts, it was argued that

there was no delivery and receipt of the one-fourth of the horse, and consequently, that no property in it passed by the gift. The learned judge has, however, held that delivery is not indispensable to the validity of the gift. The proposition on which the lord justice proceeded may perhaps be stated thus: that where a gift of a chattel capable of delivery is made per verba de præsenti by a donor to a donee, and is assented to by the donee, and that assent is communicated to the donor by the donee, there is a perfect gift, which passes the property without delivery of the chattel itself. This proposition is one of much importance, and has recently been the subject of some diversity of opinion. We therefore feel it incumbent upon us to examine it, even though it might be possible in the present case to avoid that examination. The proposition adopted by the lord justice is in direct contradiction to the decision of the Court of King's Bench in the year 1819 in Irons v. Smallpiece, 2 B. & Ald. 551. That case did not proceed upon the character of the words used, or upon the difference between verba de præsenti and verba de futuro, but upon the necessity of delivery to a gift otherwise sufficient. The case is a very strong one, because a court consisting of Lord Tenterden, C. J., and Best and Holroyd, JJ., refused a rule nisi, and all held delivery to be necessary. The chief justice said: "I am of opinion that, by the law, of England, in order to transfer property by gift, there must either be a deed or instrument of gift, or there must be an actual delivery of the thing to the donee," and he went on to refer to the case of Bunn v. Markham, 2 Marsh. 532, as a strong authority. These observations of the chief justice have created some difficulty. What did he mean by an instrument as contrasted with a deed? If he meant that an instrument in writing not under seal was different from parol in respect of a gift inter vivos, he was probably in error; but if in speaking of the transfer of property by gift, he included gifts by will as well as gifts inter vivos, then by instrument he meant testamentary instrument, and his language was correct. Holroyd, J., was equally clear on the principal point: "In order to charge the property by a gift of this description" (by which we understand him to mean a gift inter vivos) "there must be a change of possession." The correctness of the proposition thus laid down has been asserted in many subsequent cases of high authority. Thus in Reeves v. Capper, 5 Bing.

N. C. 136, the Court of Common Pleas under Tindal, C. J., referred to Irons v. Smallpiece, 2 B. & Ald. 551, and the proposition "that a verbal gift of chattels, unaccompanied with delivery of possession, passes no property to the donee" as being good law and without expression of any doubt. In 1849, in the case of Shower v. Pilek, 4 Exch. 478, the same question came before the Court of Exchequer, and the court without hesitation affirmed the ruling of Lord Truro (then Wilde, C, J.,) at nisi prius, and adopted the rule of Irons v. Smallpiece, 2 B. & Ald. 551. The alleged gift in question was per verba de futuro, but in respect of chattels then in the possession of the intended donee. The gift was held open to both objections. "To pass the property," said Alderson, B., "there must be both gift and a delivery; here there is hardly a gift." "There must be a delivery to make the gift valid," said Lord Cranworth (then Rolfe, B.); "here there is a mere statement that the goods which the defendant has in her possession the owner will give her." Again (in 1865) in Bourne v. Fosbrooke, 18 C. B. (N. S.) 515, Erle, C. J. adopted the rule in Irons v. Smallpiece, 2 B. & Ald. 551, as undoubted law; and in 1870, in Douglas v. Douglas, 22 L. T. Rep. (N. S.) 127, the Court of Exchequer declined to consider whether they should overrule that case, and expressed a decided leaning in its favor. In Ireland, in like manner, the doctrine has been asserted, Lord Plunkett, as lord chancellor, holding delivery to be the only admissible evidence of the gift of a personal chattel. Patterson v. Williams, L. & G. temp. Plunkett, 95. We have thus a great body of authority in favor of the necessity of delivery: but, on the other hand, there are several authorities which require consideration. The first note of dissent was sounded in the year 1841, or twenty-two years after the decision of the case Irons v. Smallpiece, 2 B. & Ald. 551, by Sergeant Manning in a note on the case of the London and Brighton Railway Company v. Fairclough, 2 M. & G. 691, in which he impugned the accuracy of Irons v. Smallpiece, and asserted that after the acceptance of a gift by parol the estate is in the donee without any actual delivery of the chattel. The authorities cited in that note we shall hereafter consider. In 1845, in Lunn v. Thornton, 1 C. B. 379, Maule, J., interlocutorily observed that he had always thought Lord Tenterden's opinion in Irons v. Smallpiece very remarkable, because by referring to instruments of gift he left it to be inferred that an assignment might be otherwise than by deed. But beyond this his criticism did not proceed. To the report of this case Sergeant Manning appended a note similar to that in the second volume of Manning and Granger. Two years afterward (1847) Lord Wensleydale, in Ward v. Audland, 16 M. & W. 862, quoted the passage from Lord Tenterden's judgment already cited, and observed "that is not correct." To which counsel replied by referring to the criticism of Maule, J., and the learned judge made no further

observation. The criticism of the two learned judges was probably directed to the same point, namely, the use of the expression, "deed or instrument." Lord Cranworth was present as a baron of the Exchequer during the argument in Ward v. Audland, and, as we have seen, two years afterward unhesitatingly adopted Irons v. Smallpiece, and that without note or commenta course which he would hardly have pursued if he knew that Lord Wensleydale considered the case itself bad law. In 1852, in the case of Flory v. Denny, 7 Exch. 581, where the authorities lastly cited were mentioned, Lord Wensleydale referred to the two notes of Sergeant Manning, and read a portion of the latter, but expressed no opinion as to the correctness or incorrectness of the conclusion. In 1861 the case of Winter v. Winter, 4 L. T. Rep. (N. S.) 639, came before the Court of Queen's Bench. In that case a barge belonging to a father had been in the actual possession of his son as his servant. The father gave the barge to the son, and he subsequently, with the father's knowledge and assent, possessed and worked the barge as his own, and paid the wages of the crew. Wightman, J., upheld the title of the son on the ground of a change in the possession consequent on the gift. Crompton, J., on the ground that actual delivery of the chattel is not necessary to a gift inter vivos, and that it was sufficient that the conduct of the parties showed that the ownership nad been changed. Lord Blackburn (then Blackburn, J.) simply concurred. What, however, is most to our present point, Crompton, J., said that although Irons v. Smallpiece, and Shower v. Pilek, ubi sup., had not been overruled, they had been hit hard by the subsequent cases. In 1883 the case of Dandy v. Tucker, 31 W. R. 578, came before Pollock, B., sitting as a judge of the Chancery Division, and he declined to follow the decision of Irons v. Smallpiece, saying that he "certainly could not accede to the proposition generally that the actual delivery of a chattel is necessary to create a good gift inter vivos." "The question to be determined," he said, "is not whether there has been an actual handing over of property manually, but whether, looking at all the surrounding circumstances of the case, and looking particularly at the nature and character of the chattel which is proposed to be given, there has or has not been a clear intention expressed on the part of the donor to give and a clear intention on the part of the recipient to receive and act upon such gift. Whenever such a case should arise again, I am confident that that would be the basis of the decision of a court of common law, and of course, the same result would follow in a court of equity." Lastly in (1885), Cave, J., in the case of Re Ridgway, 15 Q. B. Div. 447, expressed his opinion "that it is going too far to say that the retention of possession by the donor is conclusive proof that there is no immediate present gift; although, undoubtedly, unless explained or its effect destroyed by other circumstances, it is

*

strong evidence against the existence of such an intention." These two atter authorities have been followed by Lopes, L. J., in the case now before us, feeling that when sitting as a judge of the first instance he could not rightly depart from them. There is thus some difference of judical opinion as to the rule stated in Irons v. Smallpiece. We cannot think that the few recent decisions to which we have referred are enough to overrule the authority to that decision, and the cases which have followed it: but they make it desirable to inquire whether the law as declared before 1819, was in accordance with that decision, or with the judgment of Pollock, B., in Danby v. Tucker, ubi sup. This inquiry into the old law on the point is one of some difficulty, for it leads into rarely-trodden paths, where (as is very natural) we have not had the assistance of counsel, and where the materials for knowledge are for the most part undigested. The law enunciated by Bracton in his book "De acquirendo rerum domino," seems clear to the effect that no gift was complete without tradition of the subject of the gift. In Bracton's day, seizin was a most important element of the law of property in general; and however strange it may sound to jurists of our day and country, the lawyers of that day applied the term as freely to a pig's ham (select Pleas in Manorial Courts, p. 142; see also Professor Maitland's papers on the Seizen of Chattels, the Beatitude of Seizin, and the Mystery of Seizin; Law Quarterly Rev., I. 324; II, 484; IV. 24, 286) as to a manor or a field. At that time the distinction between real and personal property had not yet grown up; the distinction then recognized was between things corporeal and things incorporeal; no action could then be maintained on a contract for the sale of goods, even for valuable consideration, unless under seal; the distinction so familiar to us now between contracts and gifts had not fully developed itself. The law recognized seizin as the common incident of all property in corporeal things, and tradition or the delivery of that seizin from one man to another as essential to the transfer of the property in that thing, whether it were land or a horse, and whether by way of sale or of gift, and whether by word of mouth or by deed under seal. This necessity for delivery of seizin has disappeared from a large part of the transactions known to our law; but it has survived in the case of feoffments. Has it also survived in the case of gifts?, It has been suggested that Bracton, whilst purporting to enunciate the law of England, is really copying the law of Rome. But by the law of Rome, at least since the time of Justinian, gift had been a purely consensual transaction, and did not require delivery to make it perfect. Inst. II, VII. Coming next to the great law-writers of the reign of Edward I, they hold language substantially the same as that of Bracton, except indeed that the difference between transactions purely voluntary, or for pecuniary consideration, appears to be growing