considered as a whole. To make it more specific would, in our opinion, require that the evidence be pleaded. Similar declarations in actions in cases for damages for wrongful acts in interrupting and destroying plaintiff's business and injuring the reputation of his business which contained no more specific allegations than are set forth in the declaration under consideration have been held by this court to state a cause of action. Oliver v. Perkins, 92 Mich. 304-315, 52 N. W. 609; Church v. Anti-Kalsomine Co. 118 Mich. 219, 76 N. W. 383.

The Federal courts have sustained similar declarations in cases brought under the Sherman anti-trust law (Act July 2, 1890, chap. 647, 26 U. S. Stat. 209 [U. S. Comp. Stat. 1901, p. 3200]). Wheeler-Stenzel Co. v. National Window Glass Jobbers' Assoc. 152 Fed. 864, 81 C. C. A. 658, 10 L.R.A. (N.S.) 972; Monarch Tobacco Works v. American Tobacco Co. 165 Fed. 774-779; People's Tobacco Co. v. American Tobacco Co. 170 Fed. 396, 95 C. C. A. 566; Hale v. O'Connor Coal, etc. Co. 181 Fed. 267.

The remaining ground for demurrer relied upon is that plaintiffs' testator was estopped from bringing this action by reason of having sold his business prior to his death. The declaration shows that, after [266] Simon Frohlich's business was ruined, the unlawful acts of defendants as charged and his factory ceased operations, he was forced to and did sell all the tangible personal property used by him in connection with his business to one of the defendants at a price $20,000 less than its value. This sale carried with it no rights of action or other intangible property or interests. If he had a cause of action against defendants, this sale in no way disposed of it. This ground for demurrer is therefore not meritorious. Our conclusion is that the demurrers should have been overruled.

The judgment of the circuit court should be reversed and set aside, with permission to the demurring defendants, after notice of this decision, to plead to the declaration within the usual time allowed by rule.

Kuhn, Bird, and Moore, JJ., concurred with McAlvay, C. J.

NOTE.

Survival of Right of Action for Con

spiracy to Restrain Trade.

The reported case holds by an equally divided court that a right of action for the damages caused by an illegal conspiracy in restraint of trade is not an action for damages by fraud and does not survive the death of the injured person. A like result has been reached in what appears to be the only other 'case passing on the survival of such a cause

of action. Murray v. Buell, 76 Wis. 657, 45 N. W. 667, 20 Am. St. Rep. 92. In that case the action was for damages for a conspiracy to control and monopolize the coal business in a certain city. After referring to the common law rule whereby personal actions die with the injured person, the court said: "It is claimed, however, that such cause of action would survive by virtue of ch. 280, Laws of 1887, amending that section by the introduction of the words, or other damage to the person,' so that the part here applicable now reads: 'Actions for assault and battery, or false imprisonment, or other damage to the person.' But it is very manifest that the conspiracy in question inflicted no injury or damage to the person of the plaintiff. The acts alleged were unlawful and injured his business, and gave him a right of action for damages, but such damages were in no sense 'damage to the person' of the plaintiff." In Jones v. Barmm, 217 Ill. 381, 75 N. E. 505, it was held that an action to recover for a malicious interference with business did not survive under a statute providing for the survival of actions "to recover damages for an injury to real or personal property." So in Young v. Aylesworth, 35 R. I. 259, 86 Atl. 555, it was held that an action for a conspiracy to deprive a person of the benefits of his membership in a fraternal order was not within a statute providing for the survival of "actions of trespass and trespass on the case for damages to the person or to real and personal estate." In Brackett v. Griswold, 103 N. Y. 425, 9 N. E. 438, under a statute discussed in the reported case it was said of an action brought inter alia for a conspiracy by a corporation and its officers to defraud a creditor by making a false report: "So far as the cause of action was for a conspiracy to cheat or defraud the intestate it was for an injury to a property right, and did not die with its owner."

graph company for the act of its agent in disclosing the contents of a message. [See note at end of this case.]

Appeal from Circuit Court, Ridgeland county: SHIPP, Judge.

Action for damages. H. Klugh Purdy, plaintiff, and Western Union Telegraph Company, defendant. Judgment for plaintiff. New trial granted. Plaintiff appeals. AF

FIRMED.

[22] This is an action brought by H. Klugh Purdy, plaintiff, against the defendant, Western Union Telegraph Co., for twenty-five hundred dollars punitive damages on account of an alleged wilful and wanton disclosure of the contents of a certain telegram sent plaintiff by the National Surety Co., with reference to its rates on the bond of certain public officers. The case went to the jury only on the question of punitive damages and the jury returned a verdict for eight hundred dollars.

A motion for new trial was made upon two grounds: first, because the verdict of the jury for eight hundred dollars is grossly excessive; and, second, because there was no evidence of wanton, wilful or intentional wrong on the part of defendant or its agents or any evidence which would warrant a verdict for punitive damages, and the evidence at most would support only a verdict for nominal damages.

The case was tried and the motion argued on May 16th, 1913, and on July 18th, 1913, Hon. S. W. G. Shipp, presiding Judge, filed an order granting the new trial upon the ground that there was no testimony warranting punitive damages.

From the order granting a new trial the plaintiff appeals.

L. A. Hutson for appellant.

Nelson, Nelson & Gettys for respondent.

[23] FRASER, J.-The appellant thus states his case:

"The testimony in this case shows that a telegram was sent from New York by the National Surety Company to H. Klugh Purdy, its agent at Ridgeland, S. C., reading as follows:

"Necessary to maintain manual rates on all public business.' That H. Klugh Purdy was not in Ridgeland when the said message was received, but had instructed said agent at Ridgeland to forward said message to Verdery, S. C., which said agent did.

"That said agent delivered the above stated message to John P. Wise, who was agent for a competing bonding company, and to H. H. Porter without the consent of the sender or addressee and that the contents of said mes

sage was generally known in Ridgeland when the addressee was at Verdery, S. C., two hundred miles away.

"The only question in this appeal is whether his Honor erred in granting a new trial on the ground that there was a total absence of testimony to show wilfulness."

The Circuit Judge was right. There was a total absence of testimony to show wilful

ness.

The appeal is dismissed.

NOTE.

Liability of Telegraph Company for Disclosure of Contents of Message.

A telegraph company acts at its peril if it divulges the contents of a message without the consent of either the sender or the addressee, as it is part of the company's undertaking, with respect to the transmission and subsequent handling of the message, that its contents shall not be disclosed to any unauthorized person. Barnes v. Postal Telegraph-Cable Co. 156 N. C. 150, 72 S. E. 78. A telegraph company incurs no liability for telephoning a message beyond the limits of its lines with the consent of the sendee. Barnes v. Postal Telegraph-Cable Co. supra; Hellams v. Western Union Tel. Co. 70 S. C. 83, 49 S. E. 12. But it was held in Barnes v. Western Union Tel. Co. 120 Fed. 550, that a case was made out for the jury where it appeared that a message was telephoned to an inn by the telegraph company's agent and was left in a place where people could see and read it, by reason of which publicity the sendee of the message lost a business opportunity.

The reported case holds that a new trial is properly granted to a telegraph company in a suit against it to recover for the disclosure of the contents of messages intrusted to it for transmission, where it appears that there was, in the trial court, an entire absence of testimony to show a wilful divulgence on the part of the company's agents.

It has been held that a person who must rely on his own acts of immorality to prove his damages in a suit to recover from a telegraph company for disclosing the contents of messages addressed to him is not entitled to any recovery. Western Union Tel. Co. v. McLaurin (Miss.) 66 So. 739, L.R.A. 1915C 487. "The The court in that case said: publication of the telegrams did not disclose the character of the sender. It was necessary for the plaintiff's case that he should disclose her business (if this is the proper word for this sort of traffic), in order that he might thereby show that he was injured. He could not 'open his case' without confessing his

criminal intimacy with the courtesan, and it was his relations with the woman that brought about his shame-and it was this shame which produced the injury, or actual damages. It was wrong, of course, for the telegraph company to disclose the contents of the telegrams, but the disclosure would not and could not cause any actual injury to complainant, except for his own immoral practices. Leaving out of view the immorality of plaintiff, the wrongs of the company did not injure plaintiff. Without the aid of his immoral relations with the scarlet woman, he cannot show any injury to his self-respect. It thus appears that the courts will not entertain this action at all, although it may appear that the telegraph company has been guilty of a wanton disregard of its public duties. The state will not undertake to punish the wrong because the plaintiff who brings the controversy into court comes with unclean hands, and the court can enter no judgment except such judgment as will rid it of this entire litigation."

It has been held that where the disclosure was merely the thoughtless act of a telegraph operator, from the kindest of motives, in revealing a matter of public interest which would have become general property in a few hours after the divulgence complained of, the addressee was entitled to recover nominal damages only. Cocke v. Western Union Tel. Co. 84 Miss. 380, 36 So. 392.

In Matter of Renville, 46 App. Div. 37, 61 N. Y. S. 549, wherein a person sought to compel a telegraph company to connect a ticker in his office with its telegraph wires and to furnish him with quotations of transactions on the New York Stock Exchange the court in refusing to grant the petitioner's application said: "The information delivered to the respondents for transmission is a communication which the stock exchange wishes to transmit to the persons it designates and to no one else. I can see no reason why the stock exchange should be required to furnish the appellant with this information, which relates solely to its own business upon its own property, or why the respondents should be required to violate their agreement with the stock exchange and the law of this state, and furnish to the appellant information which had been communicated to the respondents by the stock exchange for a specific purpose and none other."

Western Union Tel. Co. v. Bierhaus, 8 Ind. App. 563, 36 N. E. 161, was an action to recover from a telegraph company a penalty of one hundred dollars for the disclosure of the contents of several telegraphic dispatches. The statute on which the suit was based provided, among other things, that the company should, on the usual terms, transmit the messages received "with impartiality and good

faith, and in the order of time in which they are received, and shall in no manner discriminate in rates charged, or words or figures charged for, or manner or conditions of service between any of its patrons, but shall serve individuals, corporations and other telegraphic companies with impartiality." It was held that the action would not lie as there was no express provision in the statute which prohibited telegraph companies from divulging the contents of a message, and to disclose its contents had no necessary connection with its transmission, for transmission in good faith and with impartiality meant only the forwarding of the message, and the delivery thereof, accurately and without favor of preference. It should be noted in connection with that case that the suit was instituted under the statute quoted and not under another act which prohibited, in express terms, the disclosure of the contents of messages and which gave a remedy in damages to the party injured to the extent of the injury.

As to the effect of the obligation of secrecy imposed on telegraph companies as giving a privilege against the production of telegrams in evidence, see the note to Sotham v. Macomber, Ann. Cas. 1916C 694.

Accused, obtaining money by means of short weight of coke sold to prosecutor, was guilty of obtaining money by false pretenses, punishable by Revisal 1905, § 3432, though prosecutor testified that he had been suspecting that accused was selling short weight, and that he had to buy from him to find out whether that was true or not, and that he did not know positively that accused sold short weight until the coke had been weighed after paying the price.

[See note at end of this case.]

Appeal from Superior Court, Kowan County. LONG, Judge.

Criminal action. Salisbury Ice and Fucl Company convicted of false pretenses and appeals. Petition to review record and reconsider opinion. The facts are stated in the opinion. PETITION DISMISSED.

Linn & Linn for appellant.

Attorney-General Bickett, Assistant Attorney-General Calvert and A. H. Price for appellee.

[403] CLARK, C. J.-This is a petition to "review the record and reconsider the opinion filed in this case before certification to the lower court, on account of an alleged palpable oversight therein." This is a criminal action in which the defendant is indicted, for false pretense in obtaining money by means of short weight in coal. The petition to reconsider relies upon the evidence of the prosecutor, in that when he was asked, "Yet you [404] allowed the money to be paid the driver, thinking and feeling and knowing at the time that the ton of coke was at least 200 pounds short?" he answered, "To the best of my judgment."

This Court has uniformly held that “a petition to rehear, or to grant a new trial for newly discovered testimony, cannot be entertained in this Court in criminal actions." State v. Lilliston, 141 N. C. 864, 54 S. E. 427, which reviews and approves State v. Jones, 69 N. C. 16; State v. Starnes, 94 N. C. 982; State v. Gooch, 94 N. C. 1006; State v. Starnes, 97 N. C. 424, 2 S. E. 447; State v. Rowe, 98 N. C. 630, 4 S. E. 506; State v. Edwards, 126 N. C. 1055, 35 S. E. 540; State v. Council, 129 N. C. 511, 39 S. E. 814; State v. Register, 133 N. C. 746, 46 S. E. 21, and State v. Lilliston, has itself since been cited and followed in State v. Turner, 143 N. C. 643, 57 S. E. 158; State v. Arthur, 151 N. C. 654, 19 Ann. Cas. 505, 65 S. E. 758; Murdock v. Carolina, etc. R. Co. 159 N C. 132, 74 S. E. 887.

But this differs from a petition to rehear in that it is a motion to reconsider the opinion before it is certified down. In the evidence cited by the petitioner the question is mistaken for the answer. The answer does not say that before the witness paid for the coal he knew that it was less than a ton, but merely that it was so "to the best of his judg ment." He further said in his evidence that he "had to buy from the defendant to find out whether it was or not (selling short weight)." He said he had been suspecting it all the time. Counsel for the defendant further asked the witness: "The very minute you looked at this coal that weighed 1,750 pounds, it was not necessary for you to take it to the

scales?" To which the witness replied: "Yes, sir; to prove how many pounds; I had much rather have the weights than my judgment." All this shows that while the witness strongly suspected the defendant of selling short, he did not know positively that this was so until he had tested the matter on the scales. In fact, it was impossible for him to know beforehand as to his own purchase. All he really knew was that he was offered a ton of coal by defendant for $5, that the coal was sent to him for a ton, and that he paid the $5, and on weighing it he found that it was 250 pounds short. He also testified to several other instances in which he had bought coal from defendant for other parties, and when it came it was short weight by the scales, and that he sent the coal on to his customers, adding enough of his own coal to make up the weight,

[405] The judge charged the jury: "A false pretense is a false representation of a subsisting fact, false within the knowledge of the person making the representation, calculated to deceive and intended to deceive, and which representation does deceive.

When

this is made to appear-all these things are made to appear to the satisfaction of the jury and beyond a reasonable doubt-then the offense is what is called obtaining goods under false pretense." There was evidence suflicient to submit the case on these points to the jury, and the charge was unexceptionable to the defendant in this respect.

While the charge included the expression "and did deceive," the latter expression means only that the defendant, by means of the false representation, procured the article. Revisal, 3432, requires merely that the person shall knowingly and designingly, by any false pretense whatsoever, obtain from any other person anything of value with intent to cheat. That section further provides that it is not necessary to allege an intent to defraud any particular person or any ownership of the thing of value obtained nor to prove an intent to defraud any particular person; "but it shall be sufficient to prove that the party accused did the act charged, with an intent to defraud," and that amply appears in these sales made by defendant.

Nor was it different under the original English statute. In Rex v. Ady, 7 C. & P. 140, 32 E. C. L. 469, 32 E. C. L. 469, it was held: "If a party obtains money by false pretense, knowing it to be false at the time, it is no answer to show that the party from whom he obtained the money laid a plan to entrap him into the commission of the offense."

This is followed by many cases in this country cited in the notes to State v. Littooy, 17 Ann. Cas. 292, which held: "It is no defense that the complaining witness solicited the defendant to perform the illegal operation

charged in the bill with a view to having him prosecuted therefor." In the notes to that case, ib. 295-298, numerous decisions are cited as to different offenses, holding the above doctrine, among them Abortion, Counterfeiting, Disposing of bank notes with intent to defraud, False pretense, Selling obscene mat. ter, and especially in Liquor Law violations, as to which it is held that "a person making an [406] unlawful sale of liquor is not excused from the consequences thereof because the sale was induced for the sole purpose of securing evidence to be used in prosecuting the seller," citing Borck v. State (Ala.) 39 So. 580; Evanston v. Myers, 172 Ill. 266, 50 N. E. 204; People v. Murphy, 93 Mich. 41, 52 N. W. 1042; People v. Rush, 113 Mich. 539, 71 N. W. 863; State v. Quinn, 94 Mo. App. 59, 67 S. W. 974, 170 Mo. 176, 70 S. W. 1117; State v. Lucas, 94 Mo. App. 117, 67 S. W 971; Comrs. v. Backus, 29 How. Pr. (N. Y.) 33; State v. Smith, 152 N. C. 796, DeGraff v. State, 2 Okla. Crim 519, 103 Pac. 538; Tripp v. Flanigan, 10 R. I. 128.

Another offense as to which there have been many decisions to the above purport are prosecutions for using the mails illegally, in which it was held: "It is no defense that the mails were so used at the instance and solicitation of an officer of the Government." Grimm v. U. S. 156 U. S. 604, 15 S. Ct. 470, 39 U. S. (L. ed.) 550; Rosen v. U. S. 161 U. S. 29, 16 S. Ct. 434, 480, 40 U. S. (L. ed.) 606; Andrews v. U. S. 162, U. S. 420, 16 S. Ct. 798, 40 U. S. (L. ed.) 1023; Price v. U. S. 165 U. S. 311, 17 S. Ct. 366, 41 U. S. (L. ed.) 727; U. S. v. Duff, 6 Fed. 45; Bates v. U. S. 10 Fed. 99; U. S. v. Moore, 19 Fed. 39.

In Onondaga County v. Backus, 29 How. Pr. (N. Y.) 33, which was an action for a penalty for an unlawful sale of liquor, the Court said: "The mode adopted by the plaintiff to bring to light the malfeasance of the defendant had no necessary connection with his violation of law. He exercised his own volition independent of all outside influence or control. Even if inducements to commit crime could be assumed to exist in this case, the allegation of the defendant would be but the repetition of the plea as ancient as the world and first interposed in Paradise: "The serpent beguiled me and I did eat.' That defense was overruled by the great Lawgiver, and whatever estimate we may form, or whatever judgment we may pass, upon the character or conduct of the tempter, this plea has never since availed to shield crime or give indemnity to the culprit, and it is safe to say that under any code of civilized, not to say Christian, ethics it never will."

There are some offenses, as, for instance, larceny and burglary, in which it is held that if the act is committed with the consent of the owner the perpetrator cannot be convicted;

but that is because it is no offense unless the act is done against the [407] owner's consent. The difference between the cases like this and those cases in which the defense can be set up that the prosecuting witness was consenting to the act seems to be that where the owner of the property procures the offense to be committed and seduces or influences the perpetrator to do the act, then he cannot complain. But where the offender commits the act of his own volition, and an officer, or other party, suspecting that the crime is being committed, sets a trap, as furnishing money to buy whiskey that is being sold illegally, or, as in this case, bargains for an article which on being weighed proves to be short weight, or sends decoy letters through the mail to "trap" a person who is suspected of using the mails illegally, and in like cases, such conduct does not procure the offense to be committed, but the offender acts of his own volition, and is simply caught in his own devices.

In any aspect of the case, therefore, we see no reason to reverse our former decision. Petition dismissed.

NOTE.

Inducement to Commit Offense with View to Prosecution Therefor as Defense to Such Prosecution.

Introductory, 730.
Bribery, 730.
Burglary, 731.
False Pretenses, 731.
Immigration Offense, 732.
Larceny, 732.

Liquor Law Violation, 732.
Malpractice of Medicine, 733.
Manufacture of Explosives, 733.
Postal Law Violation, 733.
Prostitution, 734.

Pure Food and Drug Act Offense, 734.
Selling Obscene Matter, 734.

Introductory.

The present note discusses the recent cases treating of the question whether it is a defense to a criminal prosecution that the accused was induced to commit the offense by one intending to prosecute him therefor. The earlier cases on this point are collected in the notes to State v. Littoy, 17 Ann. Cas. 292, and State v. Hull, 72 Am. St. Rep. 694.

Bribery.

It has been held that an inducement to accept a bribe offered by a person seeking to estop the accused with a view to a prose