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which could be fairly entertained by a rational and sensible man, not the doubt of a vacillating mind that has not the moral courage to decide, but shelters itself in a vain and idle scepticism. His Lordship hoped the jury would not be influenced by the promises of popular “ovations ” which had been held out to them in the one event or by the threat of being handed down, in an account to be prepared of the trial, to everlasting in famy in the other event. He besought them to agree, if they honestly could do so, not only for the purpose of ending this litigation, but to the end that they might not create in the popular mind that intense dissatisfaction which would arise if this trial should be rendered abortive by the dissensions of the jury, and which might lead to the introduction of changes in the present system of conducting trials, changes which his Lordship deprecated, but which might be generally thought necessary. In conclusion, he said, that their verdict would doubtless be accepted by all men, not being either fools or fanatics, as the decision of twelve men who had brought vigilant attention and marked and remarkable intelligence to the consideration of the case.
Justices Mellor and Lush added some brief remarks. A few minutes after twelve o'clock the jury retired. The defendant sat “nervous and anxious ” before his little green-baize table; throughout the densely packed court-room intense excitement prevailed. It was less than half an hour when, to the surprise of every one, it was announced that the jury had agreed upon a verdict. At thirty-three minutes after twelve they entered, and the foreman read a paper stating that they found that the defendant was not Roger Tichborne ; that the defendant had not seduced Miss Catherine Doughty ; that there was not the slightest evidence that Roger Tichborne had ever practised any improper familiarities with that lady; and that dofendant was Arthur Orton. A paper was also handed by the foreman to the Chief Justice, and was by him read aloud. It stated the desire of the jury to express their opinion that the charges of bribery, conspiracy, and undue influence were entirely devoid of foundation ; and that they regretted exceedingly the violent language and demeanor of the defendant's counsel in attacking the conduct of the prosecution and several of the witnesses. His Lordship must have felt like a school-master whose well-drilled pupils have answered their questions well at a public examination.
Mr. Justice Mellor then delivered the sentence, the defendant standing the while “confused and abashed.” The judges fully agreed with a verdict which could not fail to satisfy any impartial and intelligent man. A few stern and severe words were addressed to the defendant, and the regret was expressed that the sentence was a quite inadequate punishment for the crime. Two successive terms of seven years each, of penal servitude, were then imposed.
The defendant was forth with taken from the court-room, searched, placed in the police-wagon, driven to Newgate, thrown into a dimly lighted cell, and there left lying upon a straw pallet, to indulge in such meditations as his strange experience in life might suggest.
THE DELIVERY OF TELEGRAPHIC MESSAGES.
WE propose to consider in this article the question whether a person to whom a telegraphic message has been transmitted has a right of action against the telegraph company, either, first, for a failure to deliver the same, or, secondly, in case of a delivery, for an error in the message, the result of negligence; by reason of which, in either case, he has suffered damage.
The first question does not appear to have met with a decision in the courts, though the language of some of the cases upon other points, and particularly that of the New York f Washington Telegraph Co. v. Dryburg, justifies the inference that an action for the non-delivery of a message might be held not to be confined to the sender. The action in the case referred to was brought by the receiver of a dispatch for a mistake in transmission; and it was sustained, one of the grounds being that the defendants were the agents of the plaintiff, by reason of being servants of the public. It is clear, however, that in this the court are not to be considered as using the term “ agent” in any exact legal sense, for none of the elements of an agency are here present. What was meant was doubtless this : that, being created for the convenience and benefit of the public, they owe peculiar duties to the same, – duties resembling, to use the illustration of the court, those of common carriers. And this supposed analogy is used in many other cases, though in none of them for the express purpose of showing a liability on the part of the telegraph company for non-delivery. .
It will not be difficult to show that there is no proper analogy between the two cases. It may be doubted if, in the absence of statute, a telegraph company would be bound even to transmit messages for everybody. It is not clear that the doctrine concerning common carriers would prevail. The carrier's liability for refusing to receive and transmit goods was, at common law, alleged to arise from the ancient custom of the realm.2 But the
1 85 Penn. St. 298. 2 Jackson v. Rogers, 2 Show. 327; Elsee v. Gatward, 6 T. R. 143, 150, Ashhurst, J. case is much stronger against the person to whom a dispatch is addressed. The ground of the carrier's liability for a failure to deliver does not exist in the case of a telegraph company. The sender of a dispatch puts no property into the hands of the company, and there is, therefore, no opportunity for theft, or occasion for collusion.
Nor does it follow by the fact that telegraph companies hold themselves out to the world as undertaking to transmit and deliver messages faithfully, that they render themselves liable to those to whom messages are addressed for a breach of their duty of delivery. Their situation may be compared to that of a private messenger. It is clear that such a person, while undertaking for but a few people, is under no liability to parties to whom messages are sent for a failure to deliver; and can the case be different if the messenger should hold himself out to all persons as engaged in the business of carrying dispatches? The mere fact that he has taken upon himself a wider duty as to the number of persons for whom he will act in transmitting messages cannot generate a duty as to those to whom they are directed.
Now, the only difference between such a case and that of the telegraph company is this: that the latter are incorporated; that they employ a servant at each end of the line for the transmission and reception of the message; and that the message is sent with great celerity by means of electricity ; but these facts cannot be important.
Let us now turn to the statutes and see if any liability has been imposed by the legislature upon telegraph companies in this respect.
The English telegraph act provides that “the use of any telegraph and apparatus erected or formed under the provisions of this act for the purpose of receiving and sending messages shall ... be open for the sending and receiving of messages by all persons alike, without favor or preference.”i In Playford v. United Kingdom Telegraph Co., just cited, it was held, in an action by the receiver of an erroneous message, that this act had not affected the relation of companies to those to whom dispatches are transmitted. The telegraph act of 1868 contains no provision on this point; and the same is true of the later acts.?
i See Playford v. United Kingdom Tel. Co., Law R. 4 Q. B. 707, note. 2 25 & 26 Vict. c. 131, § 61; 31 & 82 Vict. c. 110; 32 & 33 Vict. c. 73, $ 23.
The Massachusetts act provides that “every company shall receive dispatches from and for other telegraph lines, companies, and associations, and from and for any person ; and on payment of the usual charges . . . shall transmit the same faithfully and impartially.” And for every wilful neglect the company are declared liable to a penalty of one hundred dollars to the “person, association, or company sending or desiriny to send the dispatch."1
The statutes of New York,2 Michigan,3 Missouri,4 and Maryland 5 contain provisions and prescribe penalties substantially the same as those in this act.
The statute of Pennsylvania simply requires the companies to transmit dispatches offered, under a penalty for refusal, with no provision for faithful performance.
In Maine, it is provided that “for any error or unnecessary delay in writing out, transmitting, or delivering a dispatch ... making it less valuable to the person interested therein,” the company “shall be liable for the whole amount paid on such dispatch , and they shall transmit all dispatches in the order they are received, under a penalty of one hundred dollars, to be recovered with cost by the person whose dispatch is wilfully postponed.” ?
Many of the states are without statutory provisions on this particular point; and no act has been found giving a right of action to the person to whom the message is sent, either for non-delivery or for error in transmission, excepting that of Maine above quoted. It must be conceded that in that state the receiver of the message, if he be “the person interested therein," has a right of action to the amount paid for transmission. But this would perhaps cover no more than the case of a dispatch transmitted by the plaintiff's agent; and if so, it abridges rather than enlarges the liability of the telegraph company. For, apart from such a provision, the company must be liable for the actual loss to the plaintiff, where the sender acts as agent in the premises. But this article is not predicated of such cases.
The other branch of the question – whether the receiver of a message can sue the telegraph company for an error in transmis
i Gen. Sts. c. 64, § 10.
? 2 Rev. Sts. 740, $ 11, 5th ed.