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ing it, or in other words, to transmit it for half price; it was held that this was no violation of the English statute, requiring companies to do business for all, "without favor or preference," it being regarded by the court as a legitimate mode of compensating the party for collecting the intelligence, and for bringing custom to the company.18 And it has also been decided, that the statutory prohibition against disclosing the secrets of the office or communicating messages, does not extend to a disclosure as a witness in a court of justice.1 The wonder is that any one should ever have supposed that such a disclosure could incur a penalty under the statute.

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24. There are some few other points, of rather a miscellaneous character, which have been decided in regard to the rights, duties, and liabilities of telegraph companies, which we shall state very briefly.

1. We have already noticed some cases bearing upon the relative rights, pertaining to highways and telegraph companies, under the subject of Eminent Domain and Highways. It seems to be settled in England, that placing telegraph posts in the highway without legislative authority, will be ordinarily treated as a nuisance, unless placed in some position inaccessible to or dinary travellers, even when not placed in the travelled or central portion of the highway.20 So, also, when a telegraph company without any parliamentary powers laid down their wires in tubes under a highway, an information and bill was filed, complaining of this as a nuisance to the public, and an invasion of the rights of the adjacent land-owner. But the court refused to grant an injunction until the rights of the parties had been established at law.21

2. And where telegraph companies are allowed by legislative grant to lay down their lines along a highway, they are still bound to see that no injury happens to passers along the highway, from the defective or imperfect condition of the instru

18 Reuter v. Electric Tel. Co., 6 Ellis & Bl. 341.

19 Henisler v. Freedman, 2 Parsons, 274.

20 Reg. v. United Kingdom E. Telegraph Co., 9 Cox, C. C. 174; s. c. 6 L. T. N. S. 378; s. c. 31 L. J. N. S., Magistrates cases; ante, § 109.

21 Attorney-General v. The United Kingdom Electric Telegraph Co., 30 Beav. 287; s. c. 8 Jur. N. S. 583.

ments used by them, whether posts or wires.22 It was here decided, that in such cases the company will be responsible for damages to an individual, caused by the erection of the telegraph along the highway, if improperly made, or if suffered to fall down and be out of repair, although the travelled part of the way is not thereby obstructed. In this case the plaintiff was a passenger upon a stage coach, which was upset by coming in contact with the wires of the company, in consequence of the decay and swaying over of the posts and the lowering of the wires thereby, although not across the travelled part of the highway.

3. In one case 23 the plaintiffs were the owners of a telegraph cable lying at the bottom of the sea between England and France. The defendants were aliens, and their ships, while sailing upon the high seas, more than three miles from the English coast, lowered an anchor and injured the cable. It was held that the court would presume that the masters of the ship knew of the existence and situation of submarine cables, and that a duty was thereby cast upon all masters of ships to manage their vessels so carefully and skilfully as to avoid (if possible, by the exercise of reasonable precaution) injuring these cables.

4. The extent of the duty of maintaining secrecy among the operatives and employees of the telegraph companies whose employment brings them acquainted with the contents of messages sent or received, is of great importance. This is in many of the states secured by the imposition of penalties for disclosure. But we apprehend that no security will be available in any such sense as to render this mode of communication safe and comfortable, unless it be either the religious sense of duty, or at the least a sense of moral honesty and honor, which should lead one to speak the truth and to keep the truth, when that becomes a duty.24 There can be no question of the duty of the

22 Dickey v. Maine Tel. Co., 46 Me. R. 483; s. c. 8 Am. Law Reg. 358.

23 Submarine Tel. Co. v. Dickson, 15 C. B. N. S. 750; s. c. 10 Jur. N. S. 211. 24 It has been observed of late that women are more generally employed in telegraph offices than formerly, and especially on the other side of the Atlantic. This has been attributed to the higher sense of truth and honor among that sex than the other. The same thing leads many to employ women as cashiers in places where it is impossible to place any check upon them. The same reason

most inviolable secrecy in regard to all messages sent or received by telegraph companies. And unless this can be secured it will very essentially abridge the extent of their business. There is a duty in all employments to keep the secrets of the business, but more especially in one where such extensive correspondence is conducted.25

5. There is one decision in regard to these companies by the Supreme Court of Nova Scotia 26 which has more bearing upon the question of currency than any other. By the terms of the lease of the plaintiffs' line to the defendants payments are to be made for rent in "dollars and cents of United States currency." A question arose whether the treasury notes, made lawful money in the United States by subsequent act of Congress, could be regarded as coming fairly within the terms of the lease, the value of the United States currency being thereby greatly depreciated. The court held that notes were not a legal tender on the lease for rent. This decision unquestionably meets the equity and justice of the case, but whether it meets the law is, perhaps, more questionable. We have come to regard that act as entirely within the constitutional powers of Congress, although a most awful experiment to visit upon a commercial country like our own, and one which foreign courts would look upon as altogether inadmissible under the circumstances in which it was adopted. But if its adoption was doubtful, its continuance seems more so, after the emergency which called it into existence has passed away.

has been assigned for employing women in highly responsible places in the Treasury department since the manufacture of so much of the currency of the country there. This is not the place to discuss questions of that character.

25 In Tipping v. Clark, 2 Hare, 393, Wigram, Vice-Chancellor, said, that every clerk employed in a merchant's counting-house is under an implied contract that he will not make public that which he learns in the execution of his duty as clerk. See also Prof. Dwight's excellent article on the law of this subject. 4 Am. Law Reg. 193, 206, and cases cited on this point. We desire here to make our acknowledgments for great assistance from that article in preparing our own chapter on the topic.

26 The Nova Scotia Tel. Co. v. Am. Tel. Co., 4 Am. Law Reg. N. S. 365.

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§ 190. 1. THE office of the writ of mandamus is very extensive. It is the supplementary remedy where all others fail. Lord Mansfield says, "It was introduced to prevent disorder, from a failure of justice and defect of police. Therefore it ought to be used upon all occasions where the law has established no specific remedy, and where in justice and good government there ought to be one." "If there be a right and no other specific remedy this should not be denied.2" The general rules applicable to the use, and the mode of obtaining this writ, are sufficiently discussed in the digests, abridgments, and elementary works, under this title.3

1 Rex v. Barker, 3 Burr. 1265. See Woodstock v. Gallup, 28 Vt. R. 587. People v. Head, 25 Ill. R. 325. Draper v. Noteware, 7 Cal. R. 276. Cal. R. 276. The same principles are declared by Lord Ellenborough, in Rex v. Archbishop of C. 8 East, 213, 219; 6 Ad. & Ellis, 321. And where there is any other equally efficacious remedy this writ will not lie. Bush v. Beavan, 1 H. & C. 500; 32 L. J. Exch. 54. Post, § 199, pl. 3.

2 Commonwealth v. Pittsburg, 34 Penn. St. 496; Fremont v. Crippen, 10 Cal. R. 211. In this last case it was held mandamus would lie to compel the sheriff to execute a writ of possession, although there might be either a civil action or a criminal prosecution against him for the refusal, since neither of these remedies would do full justice to the complainant.

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12 Petersdorff, Ab. 438; 6 Bac. Ab. 309, 418, tit. Mandamus; 3 Black.

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2. The mode of proceeding in obtaining the writ is controlled very much by statute in England at the present time, and in most * of the American states. There are some few points which are of general application.

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(1.) The power of granting the original prerogative writ of mandamus in England was confined to the Court of King's Bench, and in most of the American states it is given, by statute, to the highest court of law of general jurisdiction. This prerogative writ seems anciently to have been issued to inferior jurisdictions by the Court of Chancery in England, but not to the King's Bench. This writ is not demandable as of right, but is awarded in the discretion of the court.5

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(2.) The form of application is either by motion in court, and

Comm. 110, 264; 1 Kent, Comm. 322; Curtis's Digest, 333. And that the party may have some remedy in equity will not preclude this remedy. But see infra. Nor that an indictment will lie. Post, § 199. And it is no bar to this remedy that the party might by statute build the work, at the expense of the other party, by order of a justice. Reg. v. The Norwich & B. Railw., 4 Railw. C. 112. The legislature empowered the board of supervisors of the county of New York to cause to be raised and collected a sum not exceeding $ 80,000 to meet and pay whatever sum up to that amount might be found due to the contractors with the commissioners of records, and authorized the comptroller to pay "said amount when it should be judicially determined." The contractor not having the power to bring action and obtain judgment against the supervisors in the regular manner, it was held that this was not the intention of the legislature, and that, in the absence of any specific directions in the act as to how this judicial determination should be obtained, it would be unreasonable to infer that any other remedy was intended than that attainable by mandamus; and that application for mandamus was the proper remedy for the contractors, upon the refusal of the comptroller to pay them the amount certified by the commissioners to be due them. People v. Haws, 34 Barb. 69. And see, to the same point, Regina v. Port of Southampton, 1 E. B. & S. 5; s. c. 7 Jur. N. S. 990; 30 L. J. Q. B. 244. And where a new right has been created by act of Parliament, the proper mode of enforcing it is by mandamus at common law. Simpson v. Scottish Union Fire & Life Ins. Co., 9 Jur. N. S. 711; s. c. 32 L. J. Ch. 329. Commonwealth v. Pittsburg, 34 Penn. St. 496.

The Rioters' Case, 1 Vernon, 175; Ang. & Ames on Corporations, § 697. But see R. v. Severn & Wye Railw., 2 B. & Ald. 646; R. v. Commissioners of Dean Inclosure, 2 M. & S. 80; R. v. Jeyes, 3 Ad. & El. 416.

5 Rex v. Bishop of London, 1 T. R. 331, 334; Rex v. Bishop of Chester, Id. 396, 404; Id. 425; 2 T. R. 336. People v. Auditor of Public Accounts, 33 Ill. R. 9; s. c. 3 Am. Law Reg. N. S. 332. And the court will not entertain jurisdiction unless substantial interests are involved. Id.

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