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The agreement must be performed, and foreclosure then follows as an incident of the legal ownership. The remedy by foreclosure applies therefore to a deposit of title deeds, since this is treated as an agreement to execute a legal mortgage, though, as was held in Carter v. Wake, no such agreement is implied upon a pledge of chattels, and the only remedy is by sale. In that case railway bonds were treated as chattels, and an order for foreclosure was refused. In the present case of Harrold v. Plenty, Cozens-Hardy. J., has placed share certificates upon a different footing, and has held that the deposit of such certificates by way of security implies an agreement to execute a transfer by way of mortgage, and there is consequently the right of foreclosure. It may be noticed that the nature of the right of foreclosure was discussed also in Sadler v. Worley, 42 W. R. 476 (1894), 2 Ch. 170, where it was held to be incident to a charge on land created in favor of debenture-holders, though it is not incident to a charge created by will. Re Owen, 43 W. R. 55 (1894), 3 Ch. 320.

CONSITUTIONAL LAW-PHYSICIAN'S LICENSEREVOCATION BY STATE BOARD.-The constitutionality of laws establishing State boards of health, having power to issue and revoke licenses for the practice of medicine, are upheld in a strong opinion by the Supreme Court of Rhode Island, in the case of State Board of Health v. Roy, 48 Atl. Rep. 802. In this case the board of health revoked the license of a practicing physician for what it deemed grossly unprofessional conduct. The defendant contested the revocation of his license on the ground, first, that the said board had no jurisdiction to try defendant on said charge. The court said:

"We do not think the defendant's motion should be granted upon this ground. In Dent v. West Virginia, 129 U. S. 114, 122, 9 Sup. Ct. Rep. 231, 32 L. Ed. 623, the court says: The power of the State to provide for the general welfare of its people authorizes it to prescribe all such regulations as, in its judgment, will secure or tend to secure them against the consequences of ignorance and incapacity, as well as of deception and fraud. As one means to this end, it has been the practice of different States from time immemorial to exact in many pursuits a certain degree of skill and learning upon which the community may confidently rely, their possession being generally ascertained upon an examination of parties by competent persons, or inferred from a certificate to them in the form of a diploma or license from an institution established for instruction on the subject, scientific or otherwise, with which such pursuits have to do. * Few professions require more careful preparation by one who seeks to enter it than that of medicine. * The physician must be able to detect readily the presence of disease, and prescribe appropriate remedies for its removal. Every one may have occasion to consult him, but comparatively few

can judge of the qualifications of learning and skill which he possesses. Reliance must be placed upon the assurance given by his license, issued by an authority competent to judge in that respect, that he possesses the requisite qualifications.' If the defendant in the case at bar obtained his certificate to practice medicine by misrepresentation and fraud in palming off upon the State board of health a diploma issued by Laval University to another as one that was issued to himself, he is guilty of conduct likely to deceive and defraud the public by inducing the public to believe that he is lawfully entitled to practice medicine. by reason of the possession of qualifications that would honestly entitle him to the certificate. That such conduct would be grossly unprofessional seems to us too plain to require argument. The contention that the gross unprofessional conduct must occur after the granting of the certificate to practice has no application here, for the deception and fraud that was initiated at the granting of the certificate. was kept up and continued every time he practiced medicine in this State under the pretended authority of a fraudulently obtained certificate.

"The third ground for the motion to quash is because § 5, ch. 105, Gen. Laws R.I., is unconstitutional, in that it conflicts with § 1, art. 10, of the constitution of the State. That section provides that the judicial power of this State shall be vested in one supreme court and in such inferior courts as the general assembly may, from time to time, ordain and establish; the contention being that the State board of health is not a court, and that the powers granted to it in Gen. Laws R. I. ch. 165, § 5, are judicial powers.

While, perhaps, there may be force in the contention that the State board of health is not strictly a judicial body, yet we do not deem it necessary to decide that question here; for, even if it is not a judicial body, it does not follow, in our opinion, that the act is unconstitutional. Statutes similar to the one under consideration, restricting the practice of medicine to persons who are able to demonstrate their qualifications, have been held constitutional, as a proper exercise of the police power of the State, in very many States of the Union, as well as in the Supreme Court of the United States. See State v. Webster, 150 Ind. 607, 616, 50 N. E. Rep. 750, 41 L. R. A. 212, where the cases have been collected. this last named case the Supreme Court of Indiana, in referring to the State board of medical registration and examination of that State, said (page 621, 150 Ind., page 755, 50 N. E. Rep. and page 218, 41 L. R. A.): 'While in some respects quasi judicial, the action of the board is not judicial, any more than is the action of a county surveyor in fixing a boundary line, or of a county superintendent in giving or refusing a teacher's certificate, or the action of numberless other officers or boards in making investigations or decisions in matters committed to them. Neither is the circumstance that an appeal is al

In

lowed from a decision of the board an indication that its action is judicial. The right of appeal from the action of boards in their administrative character," it was said by this court in Board v. Heaston, 144 Ind. 583, 41 N. E. Rep. 457, 43 N. E. Rep. 651, 55 Am. St. Rep. 192, "is frequently conferred by statute. The appeal in such cases is not permitted because the action of the board is considered judicial, but it is granted as a method of getting the matter involved before a court that it may be determined judicially." Even if the State board of health is only an administrative board, and not a court, we see nothing objectionable, on constitutional grounds, to the method provided in said chapter 165, for getting the matter involved before a court that it may be determined judicially. The way provided to determine, in the first instance, whether a trial before the appellate division of the supreme court is desired, is speedy and inexpensive. He whose application for a license has been refused, or whose license is proposed to be revoked, can have a judicial trial without terms or condition, by taking an appeal, which is practically for the asking, and then his case is tried in full before the highest court in the State. If the State board of health decides in his favor he gets all he asks, with little trouble and expense. If the decision is not in his favor he gets for the asking a trial before the highest tribunal in the commonwealth. It is difficult to see how his rights could be better protected."

LIABILITY OF TELEGRAPH COMPANIES FOR ERROR OR DELAY IN TRANSMISSION OR DELIVERY.

It may be laid down as a general rule that the highest degree of care is not required of a telegraph company in the transmission and delivery of telegraphic messages. It is, however, essential that ordinary care be exercised by its agents, operators and employees.1 The engagement of a telegraph company with its customers is that each message shall be transmitted and delivered with reasonable care and dispatch under the existing circumstances of the particular case; and unless a special contract securing insurance is secured, those using the telegraph must accept losses sustained by reason of error, delay, or even total failure of transmission and delivery arising from such accidents or obstructions as telegraph lines may be subjected to. So a prima facie case of negligence may be

tract was due to unforseen accidents to the company's lines, or to a rule requiring messages to be transmitted in the order of their receipt. Where, however, the dispatch upon its face indicates that it is a commercial message, that serious loss may result through failure of prompt transmission, and the' company is so informed, it is liable for any damage that may result by reason of negligent delay in sending the message. But the sender must furnish such information to the telegraph company, it is not sufficient that it be furnished by the addressee. Where the face of the message does not indicate that delay may result in loss to the sender, and such information is not furnished to the telegraph company by the sender, only nominal damages may be recovered for failure of prompt transmission. Where no pecuniary loss results from the failure of the telegraph company to fully and properly perform its contract, but the injury sustained is purely mental, quite another question is presented, and the cases evidence two distinct lines of decision. Shearman and Redfield in the work upon Negligen lay down the following rule: "In case of delay or total failure of delivery of messages relating to matters not connected with business, such as personal or domestic matters, we do not think that the company at fault ought to escape with mere nominal damages on account of the want of strict commercial value in such messages. Delay in the announcement of a death, an arrival, the straying or recovery of a child, and the like, may often be productive of an injury to the feelings which cannot be easily estimated in money, but for which a jury should be at liberty to award fair damages. Yet in such cases the damages ought not to be enhanced by evidence of circumstances which could not reasonably have been anticipated as probable from the language of the message."

Out of this statement grew the Texas rule as to the liability of telegraph companies in damages for mental pain occasioned by failure or delay in the transmission and delivery of telegraphic messages. Briefly stated, the

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3 Dorgan v. Tel. Co.. 1 Am. L. T. (N. S.) 406.

Mental

rule may be said to be as follows: anguish or pain may constitute an element of actual damage, in an action against a telegraph company for failure to deliver a message, for which compensation may be recovered upon breach of contract, where such anguish is the direct and natural result of such breach, and provided the defendant was put upon inquiry as to the likelihood of such mental anguish resulting from failure or delay in the performance of the contract. But such damages are to be strictly compensatory, and exemplary damages will lie only in cases where the breach of contract complained of is willful, wanton or malicious.9 So following this rule it has been held that where the dispatch delivered for transmission sets the telegraph company upon inquiry as to the near relationship of the persons to whom it referred, and to whom it was addressed, it is sufficient to apprise the company that mental suffering is likely to result from a failure to transmit the message with diligence, and the telegraph company will be liable in damages for mental pain and anguish resultant upon its failure to promptly perform its contract. 10 While some cases may be found permitting the addressee in such cases to recover damages against the telegraph company for mental suffering in an action in tort independent of the right of the sender to sue in contract," a more conservative reading of this line of decisions would seem to indicate that upon this point some doubt exists. It is questionable whether the tort is not merged into the breach of contract or at least so closely resultant upon it that it forms a part thereof. Certainly there can be no privity of contract between the telegraph company and the addressee, and it would seem that, apart from the duty it owes the general public in its character of quasi-public servant, it is under no obligation to the addressee to properly and promptly transmit and deliver the dispatch, hence is no way liable in damages to the sendee for mental pain consequent upon its failure to do so. It

8 Loper v. Tel. Co., 70 Tex. 689; Tel. Co. v. Simpson, 73 Tex. 422.

9 Relle v. Tel. Co., 55 Tex. 308; Tel. Co. v. Cooper, 71 Tex. 507; Tel. Co. v. Broesche, 72 Tex. 422.

10 Tel. Co. v. Moore, 76 Tex. 66; Tel. Co. v. Adams, 75 Tex. 531; Tel. Co. v. Feegles, 75 Tex. 537; Tel. Co. v. Kirkpatrick, 76 Tex. 217.

11 Stewart v. W. U. Tel. Co., 66 Tex. 580.

is certainly policy to restrict in so far as possible actions, the losses of which are in such a measure shadowy and uncertain. If suits of this nature be recognized who shall define the limits of their existence? Granted that in actions ex delicto the wrongdoer is liable for the natural and probable consequences of his wrongful act, but in such cases as these by what standard are the damages to be measured?

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As to the right of the sender to recover damages for mental suffering occasioned by reason of the failure of a telegraph company to promptly transmit and deliver his message, where the Texas rule is followed no doubt can exist. In Alabama it has been held that where the face of the dispatch plainly suggests the necessity for prompt delivery, the sender's mental anguish is an element for which he may recover damages in an action against a telegraph company for the delay in the delivery of such telegraphic. message.12 Until recently the Indiana courts permitted such recovery, not because of the mere breach of contract, but because of the failure of the telegraph company to perform a duty which rests upon it as a servant of the people. But in the case of the W. U. Tel. Co. v. Ferguson, 14 this decision has been overruled, the court holding that the principle upon which it was based was totally foreign to the law. In Illinois the courts while evincing a leaning toward the Texas rule have inclined to a more conservative view, and have held that the sender of a telegraphic message may recover nominal damages at least for the mental suffering sustained by reason of the failure of the telegraph company to promptly deliver such message.15 The primary objection to permitting recovery in damages for injuries of this kind must lie in the fact that the wrong sustained is necessarily of such a nature as to be, to a certain extent at least, shadowy and uncertain. The grief of the one man cannot be measured by that of another. is indeed questionable whether the damages sustained can properly be assessed, or their monetary value estimated. It is obvious that there can exist no true legal basis for

12 W. U. Tel. Co. v. Henderson, 89 Ala. 510.

13 Reese v. W. U. Tel. Co., 123 Ind. 294.

14 59 N. E. Rep. 416.

15 Logan v. Tel. Co., 84 Ill. 468.

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course of things-from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the defendants, and thus known to both parties, the damages resulting from the breach of such contract which they would reasonably contem

an action ex contractu by the addressee, in such cases; in an action ex delicto, if the damages be by reason of their nature, not assessable public policy, it would seem should prohibit recovery. The sender's remedy is properly in an action for the breach of the contract, where the mental pain might be adduced in evidence to enhance the measure of damages. It is, however, essential in such cases, that the telegraph company be notified, or at least put upon such inquiry as would constitute pre-plate, would be the amount of injury which sumptive knowledge, that damages of this character are likely to result from its failure to properly and promptly transmit and deliver such message. If this be not the case, no true construction of the law of contracts can permit the injured party to introduce in evidence injury to the feelings, for the purpose of enhancing the award of damages, in an action for the breach of a simple contract. The Texas rule, in some insta with certain

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modifications, has been followed by the tribunals of South Carolina, 16 Tennessee1 and Kentucky;18 and expressly dissented from by those of Kansas,19 Dakota, 20 Mississippi, Missouri, 22 Florida, 23 Wisconsin, 24 Minnesota25 and by the Federal Courts of Arkansas 26 and Georgia.27

The true rule for the recovery of damages by the sender against a telegraph company, for the latter's failure of prompt and accurate transmision and delivery, is that laid down by Baron Alderson in the well-known case of Hadley v. Baxendale: 28 "Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach should be such as may fairly and reasonably be considered either arising naturally, i. e., according to the natural

16 Young v. Tel. Co., 107 N. Car. 370; Sherill v. Tel. Co. (N. Car.), 14 S. W. Rep. 94.

17 Wadsworth v. Tel. Co., 86 Tenn. 695.

18 Chapman v. Tel. Co. (Ky.), 13 S. W. Rep. 880. 19 West v. Tel. Co., 39 Kan. 93.

20 Russell v. Tel. Co., 3 Dak. 315.

21 Tel. Co. v. Rogers, 68 Miss. 748.

would ordinarily follow from a breach of contract under these special circumstances so known and communicated. But, on the other hand, if these special circumstances were wholly unknown to the party breaking the contract, he, at the most, could only be supposed to have had in his contemplation the amount which would arise generally, and in the great multitude of cases not affected by any special circumstances from such breach of contract." A ruling that has been so generally followed by our own courts that it constitutes an integral part of our telegraph law. 29 In Indiana, a statutory penalty for failure of prompt transmission and delivery has been enacted, and it has been held that a telegraph company cannot defend such an action on the grounds that the contents of the telegram related to an apparently illegal transaction, provided it was not designed to promote the commission of a crime or a tort.30

The liability of a telegraph company for the delivery of an altered telegraphic message presents several questions of interest, the decisions being, in a measure, in conflict. The English rule would seem to be that damages can be obtained by the sender alone and that, since the injury is one growing out of the breach of contract, damages can be awarded only in an action ex contractu.s Where this view is taken it is obvious that all recovery by the addressee is barred, since there can be no privity of contract between the telegraph company and the sendee.32 At least one

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case, however, is to be found wherein it is held that the party interested in the dispatch, whether sender or sendee, is the real contracting party, and such person may recover against a telegraph company when it has delivered an altered message to his detriment.33 In still another decision, the court held the telegraph company to be agent of both sender and addressee and permitted both to recover in contract for the delivery of an altered message. Another line of decisions permits the addressee to recover damages in an action in tort, against a telegraph company for the wrongful injury to him and the consequent loss sustained by reason of the delivery of an altered telegraphic message, because of the public duty which a telegraph company owes to any one beneficially interested in the message. 35 The entire question is full of extremely interesting possibilities. Many cases may arise where the sender of a telegraphic message suffers absolutely no injury, no material loss, by reason of alterations in a telegraphic dispatch which he has originated, the entire damage being to the addressee; still others may be presented, where the error, or negligence, of the telegraph company's agents or operators entails injury to both sender and sendee, in equal or varying proportions. Where the sender alone is damaged, the question presents little or no difficulty; what may, however, be considered the true rule governing all cases of this nature? A conservative view of the decisions would seem to indicate that

a telegraphic company is liable for damages sustained by reason of the delivery of an altered telegraphic message: 1. To the sender, either for breach of contract or in an action in tort, there can be no such merger of the tort unto the contract as to inhibit recovery ex delicto and compel recovery ex contractu: 2. To the addressee in tort for the injury sustained. The failure of the telegraph company to perform a duty owed to the public forms no true part of the question at issue provided no statutory liability is imposed. In no case is the telegraph

33 De Rutte v. Tel. Co., 30 How. Pr. 403. 34 Dryburg's Case, 35 Pa. St. 298.

25 Rose's Case, Allen Tel. Cas. p. 340; Allen's Case, 66 Miss. 549; Thompson Elec., secs. 427-8; Grey Com. Tel., sec. 78.

company the agent of either sender or addressee, its liability to either, or both, is solely as pincipal." as pincipal. The question is not one concerning the equitable rights of the parties, but rather demands the proper consideration of well known and applicable rules of law. Chicago.

G. C. HAMILTON, LL. M.

36 Shingleur v. W. U. Tel. Co. (Miss.). 18 S. W. Rep. 425; Tel. Co. v. Brown (Ind.), 8 N. E. Rep. 171; Tel. Co. v. Hope, 11 Ill App. 289; Cooley, Torts, pp. 103, 104; Rich v. R. R. Co., 87 N. Y. 382.

CONTRACT-CONSIDERATION-FORBEARANCE.

PRICE v. FIRST NAT. BANK OF ATCHISON.

Supreme Court of Kansas, April 6, 1901.

1. An agreement to forbear and forbearance to issue execution upon a judgment which clearly has no legal existence, and upon which no execution could lawfully issue, is not a sufficient consideration for a new promise on the part of a supposed judgment debtor.

2. In such case, an assignment, as collateral security, of an insurance policy upon the life of a husband, made through a mistake of the law by the wife, the beneficiary therein, cannot be upheld, when the assignment, in legal effect, provides that the proceeds of the policy shall be applied to the payment of the amount justly due upon such judgment. The

judgment having been extinguished, nothing is due

upon it, and the insurance money cannot be applied by the assignee in substantial compliance with the terms of the contract.

It appears by the record that, in 1890, John M. Price and his wife were indebted to the First National Bank in about the sum of $10,000. On July 10th of that year Price and wife executed to the bank two renewal notes therefor, and con

veyed by deed to David Auld, in trust for the

bank to secure said renewal notes, several parcels of real estate in the city of Atchison and vicinity. In the fall of 1893 the homestead property of Price and wife, which was not included in said deed, had been sold for delinquent taxes, amounting at that time to about $1,200, on which sale a deed was due in September, 1893. Price went to the bank to borrow money to pay off the debts against said homestead. The bank finally offered to loan him $3.200 in cash, and thereafter to loan him $600 more upon condition that he should include the homestead, which was worth about $10,000, to the security for the new loan, and should also make said homestead liable for the old loan. and in addition thereto should assign to the bank the policy in controversy in this action. That assignment was made and the policy was delivered to the bank by John M. Price on the 19th day of January, 1894, at which time the bank paid to Price the $3,200, less the amount

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