fectly well settled that an administrator cannot impeach his intestate's conveyances of either real or personal property for fraud, if the property conveyed away is not required for the payment of the debts. The complainant concedes this, but he contends that the administrator can impeach the conveyances for fraud if the property conveyed away is needed for the payment of debts, because the statute makes it the primary duty of an administrator to pay the debts, and therefore to the extent of the debts, he represents the creditors. This is a view which has prevailed in some of the States, but more generally it is held that the administrator cannot act in such way for the creditors unless he is specially empowered to do so by statute. 1 Am. Lead Cases, *43; Bump Fraud. Conv. (3d ed.) | 445, and cases cited in notes 1 and 2; Crawford's Admr. v. Lehr, 20 Kans. 509; White v. Russell, 79 Ill. 155: Burton v. Farinholt, 86 N. C. 260; Merry v. Fremon, 44 Mo. 518; Zoll v. Soper, 75 id. 460; Cobb v. Norwood, 11 Tex. 556; Boggs v. McCoy, 15 W. Va. 344. We have come to the conclusion that it is not the duty of an administrator under our statute to do more, in respect of the personal estate, than to administer the assets which he is required to inventory, namely, "the goods, chattels, rights and credits of the deceased," which in our opinion, do not include goods, chattels, rights and credits which the deceased has conveyed away in fraud of his creditors; and that in respect of the real estate, it is his duty, if the personal assets are deficient, to obtain leave to sell as much of the real estate left by the deceased, not including the real estate conveyed away by him in fraud of his creditors, as is necessary to make up the deficiency: and that in these respects the power of the administrator is only commensurate with his duty. If the deceased has conveyed his estates away in fraud of his creditors, the creditors who have been defrauded are the proper parties to prosecute the remedy. Estes v. Howland. Opinion by Durfee, C. J. MARRIAGE-ARTICLES OF SEPARATION NO BAR TO DIVORCE FOR PRIOR CAUSE.-The articles of separation were agreed to and embodied in the deed of separatiou, February 14, 1883, after the treatment complained of as amounting to extreme cruelty had been received and when the parties were already living apart. The validity of the deed is not questioned. It is admitted that the sums agreed to be paid as a provision for the wife have all been paid as agreed. The respondent contends that in these circumstances, as the petitioner is obligated to keep the articles on her part in good faith, and that inasmuch as they contemplate not a divorce but a continuance of the marital relation, they must be taken to be a complete bar to the petition. In support of his position he cites Squires v. Squires, 53 Vt. 208; also 38 Am. Rep. 668, which holds that when articles of separation have been agreed to and fully performed by the husband, a divorce will not be granted at the suit of the wife for cruel treatment received before the agreement was made. The authority which is cited by the court in Squires v. Squires in support of the decision is Mathews v. Mathews, 3 Swab. & Trist. 161, and Williams v. Williams, L. R., 1 Prob. & Div. 178. The doctrine of the latter cases however is not that articles of separation are per se a bar to divorce for causes previously existing and known to the petitioner, but only that they may be taken in connection with lapse of time and other circumstances as evidence to show that the petitioner is not prosecuting the petition in good faith, and is therefore not entitled to the favorable consideration of the court. With the exception of Squires v. Squires, all the cases, both English and American, are to the effect that such articles are not per se a bar. Beeby v. Beeby, 1 Hagg. Ecc. 789; Nash v. Nash, 1 Hagg. Consist. 140; Anderson v. Anderson, 1 Edw. Ch. 380; Rogers v. Rogers, 4 Paige, 516; J. G. v. H. G. 33 Md. 401; Kremelberg v. Kremelberg, 52 id. 553, 557; Wilson v. Wilson, 40 Iowa, 230. The case of Brown v. Brown, 5 Gill, 249, which has been thought to hold otherwise, is explained in J. G. v. H. G. supra. We can think of no ground on which such articles can be held to be a bar, unless they can be held to rest on an implied condition that the marital relation shall continue notwithstanding the separation. But is any such implication warranted? We think not, where the agreement is only an agreement for separation with provision for the injured party. Such an agreement is not inconsistent with divorce, for divorce is only a more absolute separation. It is reasonable to suppose that such a condition, if it had been intended, would have been expressed. Fosdick v. Fosdick. Opinion by Durfee, C. J. KANSAS SUPREME COURT ABSTRACT.* JUDGMENT-UNAUTHORIZED RELEASE BY ATTORNEY --SHERIFF'S SAL -VOIDABLE FOR WANT OF PROPER NOTICE COLLATERAL ATTACK.—A release of a judgment was entered upon the appearance docket by a person who signed the release as "attorney of record,' but he was not an attorney of the judgment creditor, and had no authority from the judgment creditor to enter such release, and the judgment had never been paid or satisfied. Held, that the release was void: First, because the person entering the release had no authority therefor from the judgment creditor; and second, because an attorney-at-law has no power, except by special authority from his client, to release his client's judgment where the judgment has not been paid or satisfied. Marbourg v. Smith, 11 Kans. 554, 561, 562; Herriman v. Shomon, 24 id. 387, 388, and cases there cited; Jones v. Inness, 32 id. 177; Beers v. Hendrickson, 45 N. Y. 665; Lewis v. Woodruff, 15 How. Pr. 539; Wilson v. Wadleigh, 36 Me. 496; Varnum v. Bellamy, 4 McLean, 87; Kellogg v. Gilbert, 10 Johns. 220; Simonton v. Barrell, 21 Wend. 362; Bowne v. Hyde, 6 Barb. 392. (2) Where the notice of a sheriff's sale of real estate is published in a weekly newspaper for more than thirty days prior to the sale, but is not published in every issue of the newspaper up to the day of sale, held, that such omission to publish the notice in all the issues of the newspaper up to the day of sale will render the sale voidable, and that such a sale may be vacated or set aside upon proper motion before its confirmation; but such omission does not render the sale void to the extent that it may be treated as void in a collateral proceeding or upon a collateral attack. McCurdy v. Baker, 11 Kans. 111; Whitaker v. Beach, 12 id. 492. But we do not think that the omission renders the sale void, or that it may be treated as void in any collateral proceeding, or upon any collateral attack like the present. Freem. Exe., §§ 286, 339; Freem. Void Jud. Sales, § 28; Herman Exe., §§ 251, 292, 301; Paine v. Spratley, 5 Kans. 525; Moore v. Pye, 10 id. 252; Pritchard v. Madren, 31 id. 38, 50 et seq., and cases there cited; Cross v. Knox, 32 id. 725. Rounsaville v. Hazen. Opinion by Valentine, J. CONFLICT OF LAWS-ACTION FOR DAMAGES FOR NEGLIGENTLY CAUSING DEATH-WHEN FOREIGN ADMINIS TRATOR CANNOT MAINTAIN.-An administrator appointed in another State cannot maintain an action in this State under section 422 of the Code of Civil Procedure, where the law of the State whence he derives his appointment prohibits him from instituting, maintaining or prosecuting an action in his own State for damages resulting from the wrongful act or omission *Appearing in 33 Kansas Reports. a party to the contract. Anthony v. Herman, 14 Kans. MARYLAND COURT OF APPEALS ABSTRACT. AGENCY-AUCTIONEER-WHEN PERSONALLY LIABLE. -One Weeks, being in the possession of a piano under a contract of hiring, sent it to the warerooms of the appellants, who are auctioneers, to be sold. It was sold by them at auction without disclosing the name of the owner, and was bought by the appellee. The piano was subsequently replevied by the owner, and this suit is brought by the purchaser against the auctioneers to recover the money paid on account of the purchase. Now we take the law to be well settled that one selling property as an agent without disclos of another in causing the death of his intestate. If the death of the deceased had been caused by the wrongful act of the defendant in Missouri, plaintiff, as testatrix, could not have maintained this action in that State, and as administratrix she is not entitled to any greater power or rights in Kansas than she is in Missouri, under the statutes of which State she holds her appointment. This action was therefore improperly brought by the plaintiff as administratrix of the estate of Frederick Limekiller, deceased, and the court erred in sustaining the demurrer. McCarthy v. Railroad Co., 18 Kans. 46; Land Grant Ry. v. Comm'rs of Coffey Co., 6 id. 245. On the part of the plaintiff it is contended that the right of a foreign administratrix to maintain such an action as this has been settled in K. P. Ry. Co. v. Cutter, 16 Kans. 568, and Perry, Adm'r, v. Rairload Co., 29 id. 420. The decision in Railway Co. v. Cutter, supra, and the language used in Perry, Adm'r, v. Railroad Co., supra, referring to the right of a foreign administrator or administratrix to prosecute in the courts of this State an action of this nature, was based upon the supposition that the authority of the foreign administrator or administratrix was the same under the statute of the State where appointed as under the laws of this State, and therefore under the rules of comity, a foreign administrator was allowed to exercise in this State all the powers which he or she exercised in his or her own State, not repugnant to the laws nor prejudicial to the interests of this State. But it has never been decided by this court that on account of courtesy, or for any other reason, a foreign administrator or administratrix could exercise in this State powers which he or she could not exercise in his or her own State. Land Granting the name of the principal, binds himself personally. Ry. v. Comm'rs of Coffey Co., supra. In the case of K. P. Ry. Co. v. Cutter, supra, the law of Colorado relating to administrators was not pleaded in the answer or referred to in the case; that decision was rendered upon the theory that the Colorado statute contained a provision similar to section 422 of our Code. In Perry, Adm'r, v. Railroad Co., supra, the language of the court, "that an administrator appointed in another State can maintain an action in this State under section 422 of the Code," was based solely upon the authority of K. P. Ry. Co. v. Cutter, supra. Finally, if it be urged that under this construction of the law and the decision of Perry, Adm'r, v. Railroad Co., 29 Kans 420, there can be no party having a legal right to maintain an action of this character where a resident of another State whose death is caused by the wrongful act of another in this State, dies without leaving any estate or assets in this State, we answer that we do not make the law. If there is any omission in the statutes the remedy is with the Legislature. Instead of requiring the instituting of an action in the name of the personal representative of the deceased, where death ensues from the wrong done, the Legislature can authorize an action to be maintained in the name of the widow or children, if any, or in the name of some one next of kin to the deceased. Limekiller v. Hannibal, etc., R. Co. Opinion by Horton, C. J. CONTRACT-BENEFIT OF THIRD PERSON-WHEN HE MAY SUE.-Where a father, for the benefit of his minor child, enters into a written contract with M. for the education and support of such child during her minority, and relinquishes to M. all control over her, and for some time afterward all parties comply with the terms and provisions of the contract, but afterward M, without any just cause or provocation, refuses to further comply with any of the terms or provisions of the contract, to the injury of the minor child, held, that she may, by her next friend, sue and recover from M. for such injury. It is settled in this State that a person may maintain an action upon a contract made by another for his benefit, although he was not In such cases the purchaser has the right to rely upon the responsibility of the agent by whom the sale is made, and is not obliged to rely upon the responsibility of an unknown and perhaps irresponsible principal. The same rule applies to sales made by the auctioneer. Whether the doctrine of implied warranty, of title attaches to a sale made by an auctioneer, for the breach of which he would be liable for unliquidated damages is a question not necessary to be decided in this case. Be this as it may, it is clear, we think, both on reason and authority, that if a sale is made by an auctioneer without disclosing the name of the owner, and the property is afterward claimed by a superior title, the purchaser may in an action for money had and received, recover the purchase-money of the auctioneer. There is in such a case an entire failure of consideration, and the sale having been made by the auctioneer, the only person known as vendor, it is but just and right that he should be answerable to the purchaser. There is certainly no hardship in this rule of law, because the auctioneer knows the person on account of whom the goods are sold, and has it in his power to protect himself against loss.. Any other rule would not only be a fraud on purchasers, but destructive of all confidence in auction sales. So far back as Hanson v. Roberdeau, Peake N. P. C. 120, Lord Kenyon said, "that though where an auctioneer names his principal, it is not proper that he should be liable to an action, yet it is a very different case when the auctioneer sells it. In such a case the purchaser is entitled to look on him personally for the completion of the contract." We have not been able to find a single case in conflict with the rule thus laid down. On the contrary, it is sustained by all the subsequent decisions, both in England and in this country. Jones v. Littledale, 6 Ad. & El. 486; Mills v. Hunt, 20 Wend. 431; Franklyn v. Lamond, 4 C. B. 637. And in all the text-books the principle is laid down in the broadest terms. In his work on Agency Judge Story says: "Thus where a contract is made with an auctioneer for the purchase of goods at public sale, and no dis closure is made of the principal on whose behalf the commodity is sold, the auctioneer will be liable to the purchaser to complete the contract, although from the nature of public sales it is plain he acts as agent only. Story Agency, § 267. Again, in Addison on Contracts, the author says: "Every auctioneer who sells without at the time of the sale disclosing the name of his principal contracts personally. Page 642. In Babington Auctions, Law Lib., vol. 9, § 185, the rule is thus laid down: "Where an auctioneer does not disclose the name of his principal at the time of the sale, he is personally liable to an action for damages for not completing the contract. Lemiller v. Fuchs. Opinion by Robinson, J. [Decided July 22, 1885.] THE OUR NEW YORK LETTER. IE long-deferred, much-talked-of Ward trial has been most satisfactorily disposed of, and the most refined, accomplished bunco-steerer of his day and generation has abandoned government for State contracts, and is now ruminating no doubt upon the inflexibility of the law and the profits behind the bars of Sing Sing. No trial at Oyer and Terminer since the conviction of Tweed has attracted such wide attention as this. No verdict has ever been received with more universal approval. Judge Barrett more than justified all the favorable comments that his renomination called forth, by the masterly manner in which he presided, and his methods on this occasion will go far to establish a precedent for speedy trials that is much needed. His alertness in suppressing efforts of counsel to divert the minds of the jury by introducing irrelevant matter; his promptness in checking all attempts at cheap clap-trap; his courageous protection of the unfortunate witness, Fish; and his accurate rulings on novel questions of evidence, indicate qualities that place Judge Barrett in the very front rank of American judges. This is believed to be the first instance of conviction of crime by telephone. When it was supposed that the instrument through which the famous communication of Ward was received by the then president of the Marine Bank was the ordinary telephone of commerce, the only theory to explain how any one else but Fish could hear the message was that he, Fish, was one of those men of whom it is said, "Every thing he hears goes in at one ear and out at the other." This theory was demolished however when it appeared that ths telephone used was not the kind most familiar to the profession, in using which it is neeessary to send an office boy around to ascertain what was said. Those most familiar with the Grant and Ward investigations are of the opinion that the most sensational developments are yet to be made, and that the Warner trial will be the medium by which they will be made to appear. The theory of the bona fide creditors of Grant and Ward is that those who received alleged profits in excess of legal interest can be holden as general partners, hence the masterly inactivity of many of the customers of the firm in proving up their claims. Much of the credit for the brilliant conduct of this case by the prosecution is due to the district attorney's deputy, Mr. De Lancey Nicoll, who has already earned a well-merited distinction as a public prosecutor. Mr. Nicoll has but just turned thirty, and evinces promise of great usefulness and success. The Court of Appeals decision holding against the age disqualification of surrogates is received by members of the bar here most favorably. It is believed that the incumbents will willingly abandon the title of judge in view of the more secure tenure of office when they arrive at years of discretion. The proceedings looking to the transfer of the West Shore Railroad are still dragging along. The receivers were allowed $40,000 each for their services, and this was thought at the time to be very liberal; but exJudge Horace Russell and Mr. Houston appeared personally and by attorney before Judge Brown last Saturday at Newburgh and asked that the allowance be increased to $350,000 each. Counsel for the bondholders had these gentlemen "on their list," and vigorously opposed any increase. A rather novel question was argued in the progress of a case in the Supreme Court here last week. A. sued B. for the purchase price of certain chattels, which he alleged he had sold him, and which at the time of the commencement of the action, and for some time before, had been in the legal possession of B. B. denied that he had made any such contract as was alleged in the complaint, and before suit was brought notified A. to take away the chattels (certain horses, wagons, etc.). At the trial the complaint was dismissed, after which B. notified A. to pay the charges for keep, etc., and take away his property, or that he would sell the same, deduct the proper charges and account to him for any balance. Thereupon A. took away the chattels, paid the charges and the costs of the action, and straightway appealed to the General Term from the judgment rendered, and as the result a new trial was ordered. B. then set up the above facts as a supplemental answer by leave of the court, and went to trial a second time. B. offered to prove, after introducing testimony on the principal issue, that A. had paid his, B.'s, charges, and sold the chattels at auction,and that he, B., had actually bought a part of them and paid for them at the auction sale. The gist of B.'s argument was that A. "could not have his cake and eat it too," and that the taking of the property away was a rescission of the contract, if there was any. The precise question has never been decided in this State, but the court, after argument, would not let in the evidence as showing rescission, holding that while A.'s act was tortious, it was irrelevant to the issue, and suggested to B.'s counsel that he might amend, and plead the amount received by A. at the sale as a counter-claim. As this was inconsistent with the theory of B.'s defense, he declined to avail himself of that privilege, and after excepting to the rulings of the court, went to the jury on the principal issue, and "the bulwark of the people's rights" promptly found for the defendant B. We often see it stated that oratory is no longer a necessary or desirable element in a good lawyer. This statement is usually made by men who have never been accused of possessing it. If by oratory one means a loud volume of voice and meaningless gestures, the truthfulness of the statement is admitted, but if we consider what it really means, the close observer of trials at nisi prius must admit that so long as the human mind is constituted as it is, true oratory will be just as effective as it ever was. The forensic orator, the eloquent advocate, other things being equal, has an immense advantage. The success of the leaders of our bar bear witness to the truth of this observation. It has become fashionable, especially among men conspicuously deficient in this quality, to pooh-pooh it, and the result has been to discourage the cultivation of oratorical gifts among the young men, even before admission to the bar. The consequence is that the great majority of lawyers show a painful lack of even the first principles of elocution. It is observed that the young awyers who are well trained in this respect achieve success much sooner than those who neglect it. The non-partizan basis upon which several of the judges were elected at the last election ought to make some difference in the method of appointing referees who are more conspicuous in the particular judge's party than in the profession at large, has been quite general,fand a few men have to a great extent monopolized that which is considered desirable employment by all except the busiest lawyers. The Barnards and the like have gone, but the Gratzes are as numerous as ever. ENMOT DEMOT. The Albany Albany Law A ALBANY, NOVEMBER 21, 1885. CURRENT TOPICS. of her colonies and children. In spite of the social toadyism to things English in this country, it may be said that in the weightier matters of the world England is becoming Americanized, rather than that America is becoming Anglicized. A person who hissed a singer in a theatre at Lyons, France, was arrested recently, but on appeal he was discharged, the court holding that he had as much right to express his disapprobation of a performance as others had to express their approval. So, too, it has been held by the courts in England. NOTHER amusing example of a practical test in evidence was recently made in England. Gibson's Law Notes gives the following account of it: "At the Liverpool County Court there was a dispute with a dressmaker about the fit of a certain bodice. The plaintiff, who refused to take it, al-In Clifford v. Brandon, 2 Camp. 358, Lord Mansleged it was too short, and too much padded. The dressmaker stated that bodices were now cut short on the hips, and that as to the padding it was necessary, on account of the lady being deficient in the place where the padding was placed. The plaintiff did not desire to have her figure improved by the dressmaker, she was quite satisfied with it as it was. The question of misfit or fit appeared to be incapable of decision, till at length the dressmaker claimed that it should be put on. The plaintiff at length consented to do so, and adjourned for that purpose. On her return the judge and court proceeded to criticize the fit. The judge at last made a suggestion such a suggestion, just like a man- that surely the fault of the bodice being too short might be remedied by bringing the dress higher up; but then his honor appears to have forgotten all about the ankles. The matter was however at last settled." A deep interest has sprung up recently in England on the subject of transfers of land. The Duke of Marlborough has written a letter to the Times denouncing the present system, and abusing the lawyers on whom he lays the blame for the existing evils. A series of letters on the same subject has been addressed to the Times by Mr. Horace Davey, an eminent lawyer, who advocates the adoption of a system of registration. No doubt some reform is greatly needed. It is a very difficult and expensive matter to effect a transfer in England. The Kingdom might well imitate the systems prevailing in this country, where registration prevails, and transfers are easy and cheap. But perhaps the Duke of Marlborough is unjust in blaming the lawyers exclusively for the present state of things. They may be indisposed to facilitate changes which shall diminish their own emoluments; that is human nature; but there has been a general feeling in England that land-holding is a sacred sort of thing, the mysteries of which should not be rudely profaned by being made familiar or accessible. Land continues there for long periods in the same families. The spirit of the government favors such accumulation and holding. But in this country the spirit of the institutions favors frequent and easy transfers, and is opposed to large accumulations and long holdings. It is interesting to see how rapidly the mother-country is coming over to the methods VOL. 32-No. 21. field observed: "The audience have certainly a right to express, by applause or hisses, the sensations which naturally present themselves at the moment, and nobody has ever hindered, or would ever question the exercise of that right." It is otherwise where a conspiracy exists to hiss an actor. In Gregory v. Brunswick, 1 C. & K. 24, Tindal, C. J., observed: "There is no doubt that the public who go to a theatre have the right to express their free and unbiased opinion of the merits of the performers who appear upon the stage. At the same time parties have no right to go to a theatre by a preconcerted plan to make such a noise that an actor, without any judgment being formed on his performance, should be driven from the stage by such a scheme, probably concocted for an unworthy purpose." It is a familiar principle of criminal law that many things which it is lawful to do individually and independently are illegal when effected by means of conspiracy. There never was a more unworthy conspiracy than that for which Mr. Stead has just been convicted in England, and the verdict of the jury correctly represents the right public opinion. To effect the abduction and disgrace of a child, as a detective enterprise, in order to convince the public authorities that such a thing is possible, and that such a practice prevails, is, to say the least, doing evil that good may come, which high authority pronounces wrong. The thing smacks too much of journalistic advertising. The new "Reporters are beginning to have their troubles, and to run against snags. One of them desiring to procure the opinions of the Massachusetts Supreme Court, was met with a refusal of facilities or permission, on the ground that the State had contracted with a certain prominent publishing house to publish the official reports of all the opinions, and an injunction has been applied for by that house to restrain the enterprising reporter. We do not believe that can be done, nor that the State can farm out the publication of its judicial opinions to the exclusion of any other person. Such a thing would be bad policy, and we do not suppose it to be the law. The opinions ought to be as free as the air and the water. They constitute the great body of the law, and the laws ought to be common, cheap, and easily accessible. The death of ex-Senator Sharon has revived public interest in one of the most extraordinary litiga be maintained for the value of the property actually converted. The case is directly applicable in this respect to the one now under consideration, the decisions cited from the reports of the State of and although it may conflict in this conclusion with Pennsylvania, it must still be held to be controlling as to its disposition. It has been urged that a different conclusion was arrived at in Newman v. God dard, 3 Hun, 70, but that is a mistaken view of that case, for the property for which it was held a recovery might there be had was no part of the freehold, but it was personal property, in no manner whatever connected with the premises from which it was taken. This case cannot be brought within the principle upon which that proceeded, but it is to be controlled by the authorities previously men tioned." tions of the present time. We have recently re ceived, and have read with a good deal of interest Mr. Stewart's argument on behalf of Mr. Sharon in Miss Hill's suit to establish her rights as his wife. The piece of evidence on which the plaintiff mainly relies is a letter in which he addressed her as "dear wife." This part of it, the defendant contended, is a forgery, and Miss Hill has been indicted accordingly. A fac simile of this and of various other letters, and enlarged details of a great number of words, and many terminals, are exhibited in the argument, which makes an interesting study on the question of handwriting. The strong point of the argument is that Miss Hill's conduct was inconIn Western Union Telegraph Co. v. McGuire, Insistent with the idea that she had the "dear wife" diana Supreme Court, September, 1885, it was held letter in her possession, or that she was his wife. that a rule by a telegraph company that it will not Certainly, if she was his wife, she was the most transmit a dispatch for a transient person requiring patient woman that ever lived, to endure the treatan answer, unless he makes a deposit to cover the ment which she received at the defendant's hands. charge for an answer of ten words, is reasonable. The argument is extremely powerful and ingenious, The court said, by Elliott, J.: "Affirming, as prinand as absorbing as a novel. It cannot fail to carry ciple and authority require us to do, that the teleconviction for the moment, but audi alteram partem graph company had power to make by-laws, the is a safe precept. For some reason, or for no rearemaining question is whether the one under immeson, the trial court have found in favor of Miss diate mention is a reasonable one. It is established Hill. There is one verdict in which the public will by the authorities that an unreasonable by-law is join at all events, without regard to the intrinsic void. It is for the courts to determine whether a merits, and that is, "served him right," and per-by-law is or is not an unreasonable one, and this is haps that was the inspiration of the trial court. IN NOTES OF CASES. [N Dodge v. Colby, 37 Hun, 516, it was held that an action cannot be maintained in this State for trespass on lands in another State, and for cutting and removing timber and removing turpentine therefrom. The court, Daniels, J., citing Craigin v. Lovell, 88 N. Y. 258, said: "An effort has been made to distinguish this case from that authority, upon the fact that the plaintiff in this action claims to recover the value of the timber and turpentine as so much property belonging to him, which has been converted by the persons who removed it from the land, under the authority or at the instigation of the defendant. But the removal of the timber and turpentine, and its appropriation to the use of the persons taking it, will not entitle the plaintiff to maintain this action in this State, for the conversion and appropriation were merely acts by which the trespass itself was made complete, and its fruits diverted to the use of the persons committing these wrongs upon the land. A similar proposition was presented in American Union Telegraph Co. v. Middleton, 80 N. Y. 408, but it failed to receive the sanction of the court. And it was held that the acts of trespass themselves could not be separated from those of the removal and appropriation of the property in such a manner as to allow an action to the question which now faces us. 1 Dill. Mun. Corp. (3d ed.), § 327; Law of Teleg., § 104. We are unable to perceive any thing unreasonable in the by-law under examination. A person who sends another a message and asks an answer, promises by fair and just implication to pay for transmitting the answer. It is fairly inferable that the sender who asks an answer to his message will not impose upon the person from whom he requests the answer the burden of paying the expense of its transmission. The telegraph company has a right to proceed upon this natural inference, and to take reasonable measures for securing legal compensation for its services. It is not unnatural, unreasonable or oppressive for the telegraph company to take fair measures to secure payment for services rendered, and in requiring a transient person to deposit the amount legally chargeable for an ordinary message it does no more than take reasonable measures for securing compensation for transmitting the asked and expected message. We have found no case exactly in point, but we have found many analogous cases, which in principle sustain the by-law before us. W. U. Tel. Co. v. Carew, 15 Mich. 525; Camp v. W. U. Tel. Co., 1 Metc. (Ky.) 164; Vedder v. Fellows, 20 N. Y. 126; Ellis v. Amer. Tel. Co., 13 Allen, 226; M'Andrew v. Electric Tel. Co., 33 E. L. & E. 180; W. U. Tel. Co. v. Blanchard, 68 Ga. 299; S. C., 45 Am. Rep. 480; W. U. Tel. Co. v. Jones, 95 Ind. 228; S. C., 48 Am. Rep. 713." |