make criminal the using of means to prevent conception, or to procure abortion, etc., in the several states. That power belongs to the respective states. But Congress has plenary power over the mails and postal service, and may, undoubtedly, declare what shall not be mailable matter, and punish violation of its criminal enactments in this regard. The protection of the public morals in such cases is incidental to the protection of the mails. U. S. v. Botts, 11 Blatchf. 346; Re Jackson, U. S. Sup. Court, Oct. Term, 1877. The statute upon which this indictment is founded must be construed with reference to this limitation upon the federal function and the supposed federal purpose in the enactment of the statute. Congress meant by the legislation to prevent the mails from being used to transfer matter corrupting to the public morals. Re Jackson, supra.

3. Where persons are suspected of being engaged in the violation of criminal laws, or of intending to commit an offense, it is allowable to resort to detective measures to procure evidence of such fact or intention. Many frauds upon the postal, revenue and other laws are of such a secret nature that they can be effectually discovered in no other way. Accordingly, there have been numerous convictions upon evidence procured by means of what are called decoy letters-that is, letters prepared and mailed on purpose to detect the offender, and it is no objection to the conviction, when the prohibited act has been done, that it was discovered by means of letters specially prepared and mailed by the officers of the government, and addressed to a person who had no actual existence. The books contain many cases where such convictions have been sustained. U. S. v. Cottingham, 2 Blatchf. 470; Regina v. Rathbone, 2 Moody's Crim. Cases, 310; s. c., Carr. and Marsh. 220; Regina v. Gardner. 1 Carr. and Kirwan, 628; Regina v. Williams, ib. 195; Regina v. Mence, 1 Carr. and Marsh. 234.

There is a class of cases in respect of larceny and robbery, in which it is held that, where one person procures, or originally induces the commission of the act by another, the person who does the act can not be convicted of these particular crimes, although he supposed he was taking the property without the consent or against the will of the owner. Archbold Crim. Pr. & Ev. 364; Rex v. Eggington, 2 Bos. & P. 58; State. v. Cavington, 2 Bailey (S. C.), 569; Dodge v. Brittain, Meigs. (Tenn.) 84, 86; Alexander v. State, 12 Texas, 540; 3 Chitty Cr. Law, 925; 2 East P. C. 665; 1 Bish. Cr. Law (5th Ed.) Secs. 262, 263.

The reason is obvious, viz: The taking in such cases is not against the will of the owner, which is the very essence of the offense, and hence no offense, in the eye of the law, has been committed.

The offender may be as morally guilty as if the owner had not consented, but a necessary ingredient of legal guilt is wanting. This is strikingly shown by Rex. v. McDaniel, Foster 121; s. c., 2 East, P. C. 665, where "Salmon, McDaniel and others conspired to procure two persons, ignorant of the design, to rob Salmon on the highway, in order that they might obtain the reward at that

time given for prosecuting offenders for highway robbery. Salmon, accordingly, went to a particular place fixed upon, with some money, and the two men who were procured, being led there by one of the conspirators, robbed him, and they were afterwards prosecuted and convicted, but the conspiracy being afterwards detected, the conspirators were indicted as accessories before the fact to the robbery, and, the facts being found by a special verdict, the case was argued before all the judges, who held that the taking of Salmon'smoney was not a larceny, being done not only with his consent, but by his procurement." But this principle must be limited to the cases where the consent will, as a matter of law, neutralize the otherwise criminal quality of the act. 1 Bish. Criminal Law (5th Ed.) Sec. 262. Thus, where a prosecution was founded on an act of the legislature, imposing a penalty on any one who should deal or traffic with a slave without a written ticket or permit from the owner, it is held that the offense is consummated, although the trading was done by the slave in pursuance of instructions of the owner, and in his presence, when the accused was ignorant of such instructions and presence. The reason is that, "like Eggington's case, supra, this is a contrivance to detect the offender." State v. Covington, 2 Bailey (S. C.), 569, 573; see also Regina v. Williams, 1 Carr. & K. 195; Regina v. Gardner Ib., 628.

The facts in the case now under consideration show that the defendant is as morally guilty as if the letter he was answering had been written by a person seeking the prohibited information and not by a detective. But I am of the opinion that these facts do not clearly bring the case within the particular clause of the statute on which the indictment is founded. The indictment charges that the defendant knowingly deposited in the mail a letter giving information where, how and of whom an article or thing designed and intended to prevent conception, could be procured. This was in answer to a fictitious letter of inquiry. The letter written and mailed by defendant was addressed to a person who had no existence. On its face it did not show that it was within the prohibited statute.. If it had been suffered to go through the mail to the place to which it was addressed, it would not have been called for, but have been sent to the Dead Letter Office, and could not have given to any person the prohibited information. The defendant doubtless intended to give the inhibited information, but the statute does not apply to a letter merely intended by the writer to give such information, but to a letter "actually' giving the information." If a letter of inquiry, seeking the prohibited information, had been written by an actual person, although under a feigned name, an answer in reply, giving such information, would present a case distinguishable, it would seem, from the one under consideration.

I place my judgment in this case upon the single ground that the sealed letter written by the defendant, addressed to a person who had no existance, and which, on its face, gave no information of the prohibited character, and which is brought

within the statute only by the fictitious letter of inquiry, written by a detective, is not the "giving of information" within the meaning of the statute. At all events, it is not certain that Congress intended to punish such an act, and, therefore, upon the principle above mentioned, that criminal statutes are not to be extended by judicial construction to cases not clearly and unmistakably within their terms, my judgment is that this prosecution, on the admitted facts, can not be sustained. It is a case of clear moral guilt, but not of legal criminality.

There is no legal crime committed, although the defendant did not know of the fact which deprived his act of its criminal quality. 1 Bish. Cr. Law (5th Ed.), Sec. 262. In this respect the case falls within the principle strikingly illustrated by Rex. v. McDaniel, above referred to.

In order to prevent misconception of the decision now made, it may be proper to add that we only decide the narrow and single point that the letter, written and deposited by the defendant, did not give the prohibited information, and hence is not within the statute. It would present a different case for consideration if the letter, written and deposited by the defendant, had been capable, into whosesoever hands it might have fallen or come, of imparting the prohibited information.

We do not decide that decoy letters can not be used to detect persons engaged, or suspected to be engaged, in violating criminal laws, but recognize the doctrine that such letters may be so used. We only decide that the defendant, by his answer to the decoy letter, did not, under the special circumstances of the case, bring himself within the criminal prohibition of the act of Congress.

It would also present a different case if the letter of inquiry had been written by some person actually seeking the prohibited information for immoral purposes, although written under an assumed name, and the defendant had mailed such a letter as he actually wrote and deposited in this case. Congress has not, and probably can not make the business in which it is claimed the defendant is engaged, viz., of furnishing to whoever may apply therefor the means of preventing conception, to procure abortion, etc., illegal and punish the same; but the State of Missouri may do so. If the state has done so, and the defendant is suspected of being engaged in the illegal business, undoubtedly decoy letters may be used for the purpose of discovering his violation of the law, as the cases above cited show. And if, in answer to a decoy letter, the prisoner deposits in the mail any written or printed card, circular, etc., which on its face gives information of the prohibited character, there is nothing in this decision which precludes us from holding such a case, if it should arise, to be within the act of Congress. On the admitted facts, I am of opinion, for the reasons above given, that the prosecution can not be maintained.

TREAT, J., concurring:

The questions involved in this case are extremely difficult of solution. It is necessary to discrim

inate with care, on the one hand, between the offense charged against the postal laws and the modes of proving the same, and on the other hand, the offense stricken at by state statutes, and the moral wrong and outrages implied in the vocation or business denounced.

The sense of indignation against such vocation or conduct should not permit a violation by the courts of established rules of law or an unlawful exercise of jurisdiction, nor the countenance of unlawful contrivances to induce or manufacture crime. The postal system is designed by statute, for obvious reasons, to observe and enforce the sanctity of private correspondence. Severe penalties are denounced against all who intercept letters, etc., with a view of prying into their secrets. Section 3,892, Revised Statutes of the United States, page 763.

Section 3,893, as amended, volume 19, page 90, chapter 186, under which these indictments are found, prohibits the conveyance through the mails, or delivery from any postoffice or by any lettercarrier, of any printed circular, or notice of any kind, giving the inhibited information directly or indirectly. It then proceeds as follows: "And any person who shall knowingly deposit, or cause to be deposited, for mailing or delivery any such non-mailable matter, and any person who shall knowingly take the same, or cause the same to be taken from the mails, for the purpose of circulating or disposing of, or of aiding in the circulation or disposition of the same, shall be deemed guilty,"


Thus the section provides for two classes of offenders, viz: Those who deposit knowingly for mailing or delivery such non-mailable matter, and also those who knowingly take the same from the mails for the purpose stated. The various acts of Congress in pari materia must be considered in connection with constitutional limitations. It is for preserving the purity and privacy of the postal service that Congress has passed the many laws to which reference is made; yet, if non-mailable matter is not to be delivered, how are the contents of a sealed letter to be ascertained?

It must be conceded that contrivances to induce crime (the contriver confederating for the purpose with the criminal), are most rigidly scrutinized by the courts, even when the contrivances are lawful in themselves. But when the contrivances are of an unlawful character, should courts not be even more strict?

Again. The statute denounces the deposit of forbidden matter in the mails, which "gives " (not which is intended or designed to give), “information directly or indirectly," etc. In this case the letter deposited, did not, of itself, give any such inhibited information; it was not addressed to any person in existence, and if, in the ordinary course of the mails, it had reached its destination, it would have been delivered to no one, for there was no one to whom to deliver, but would have passed to the dead-letter office. To make the letter bear an interpretation against the prohibitions of the statute, it is necessary to examine the same in connection with the fictitious or decoy letter,

bearing simulated post-marks, and also to say that the letter addressed to the fictitious person, could, despite section 3,892, be lawfully taken from the maiis after it was deposited therein and before it had been delivered to the person to whom addressed, "with the design of prying into the business or secrets of another."

No case, after most diligent search, has been found which disposes exactly of the point under consideration. In my judgment, it must be settled in the light of elemental principles.

No court should, even to aid in detecting a supposed offender,lend its countenance to a violation of positive law, or to contrivances for inducing a person to commit a crime. Although a violation of law by one person, in order to detect an offender, will not excuse the latter or be available to him as a defense, yet resort to unlawful means is not to be encouraged. When the guilty intent to commit has been formed, anyone may furnish opportunities or even lend assistance to the criminal with the commendable purpose of exposing and punishing him. But no case has been found which goes beyond these views. There are legitimate means and jurisdictions where offenses can be tried and punished, and the public weal is best subserved where rigid adherence thereto is enforced.


Is the rule-now by repeated decisions firmly imbedded in the law of England, and in that of many of the states of the Union-which exempts the master from liability to his servant for injuries which he may sustain through the negligence or incompetency of a fellow-servant, engaged in the same common employment, embracing within the term "common employment," all those who are engaged in promoting the same ultimate object, no matter how distinct the departments in which they respectively serve-a just or a wise one? Can any satisfactory reason be discovered upon which it may be rested?

The learned American jurist, Cooley, in his pamphlet upon this subject, has, perhaps, said all that can be urged in defense of the rule, and has fortified his reasoning by the citation of a multitude of decisions, many of which were rendered by courts everywhere made eminent by the great learning and ability of the judges who have presided over them.

All the various reasons which have ever been given by the courts and text-writers in support of this rule will be found stated, in the pamphlet referred to, with a perspicuity characteristic of the author.

In answer to the question, then, whether any satisfactory reason can be found for the rule, it will be deemed sufficient to consider those stated therein.

First, then: It is said that in many cases the servant has better means of observing the conduct

of his fellow-servants, and of judging of their fitness and competency than the master can have; and, therefore, public policy requires that the servant shall be taught that he can not look to the treasures of his principal to compensate him for the injuries which he may sustain through the fault of a fellow-servant; that the natural consequence of such teaching will be to make each servant more watchful, more careful and observant of the conduct and competency of his co-employees than he otherwise would be, and cause him to report any short-comings to the common master, and that thereby the general safety of all will be best promoted.

It appears to us that there are several answers to this proposition, each of which conclusively establishes its fallaciousness. Does not our knowledge of mankind, and our every-day experience teach us that, as a general proposition at least, he who finds himself in a situation where he knows that his life or limb may be endangered through the negligence or incompetency of others, the natural instinct of self preservation will prompt him to exercise such care as he can to protect himself? Can it be seriously contended that one so situated will, by knowledge of the fact that, if he meet with serious accident through the fault of his co-employee-a broken leg or a broken back, for instance-which renders him a cripple for life, the law will deny him a right of action therefor as against the common master; or that, if he lose his life, his family can expect no moneyed compensation for their loss from his principal, he will thereby be led to exercise any greater degree of care to save his life or protect his limb than the instinct of self-preservation alone would prompt him to exercise? Can it be argued that the servant, placed in a situation of danger, measures the degree of care he will take to avert serious accident to himself, by his chances of receiving a compensation for his injuries, in dollars and cents, from his principal? It would seem that these questions must be answered in the negative. How, then, is public policy subserved by the rule, if this be the reason for it? Does not public policy require just the opposite of this rule? We trust we have shown that the law of self-preservation is a sufficient, and indeed the surest, guaranty for the conduct of the servant. Now, if the master be taught that, if one of his servants be injured without fault on his, the injured servant's, part, through the negligence or incompetency of a fellow-servant, he, the common master, must respond in damages, will not the natural consequence of this teaching be to cause the master to exercise all possible vigilance in engaging his servants, to ensure a higher degree of care on his part, to employ none but careful and competent persons to serve him? Will not the general safety of all be thus best promoted?

But, again, if this reason be the foundation of the master's exemption, is it not most unjust and illogical to embrace within the term "fellowservants," all those who are engaged in the same common employment, no matter how far removed from each other; no matter how distinct their respective departments in the common serv

fice; no matter that they are so situated by reason of the duties assigned to them that the one has no opportunity whatever of observing the conduct of >the other, or of judging of his competency, or of protecting himself against his fault or negligence? See the very able opinion rendered in the case of Killey v. Belcher Mining Company, by Mr. Justice Field of the Supreme Court of the United States, and Hillyer, District Judge, and reported in the third of Sawyer, wherein it is said that, "carried to this extent the rule relieves the master of a responsibility which justice and policy alike require he should bear."

Yet this is the length to which it is carried by the general current of authority. For instance, the switch-man in the employ of a railroad company is held to be a fellow-servant, within the rule, with the station agent employed hundreds of miles distant; the brakesman on the train a fellow-servant, not only with those employed upon his train, but with all the officers and men engaged in operating all the other trains of the company. Again, the miner, who delves thousands of feet below the surface, is held a fellow-servant, within the rule, with the engineer and all the other hands employed on the top. They are so situated that it is physically impossible for the one to be an observer of the conduct of the other, or to guard himself against such other's negligence; yet if, without personal fault, he be injured through the negligence of such other, he is told by this rule that though his injuries are the result of the fault of another, engaged in his master's service, in advancing his master's interests, in whose selection he had no voice and over whom he had no control, still the common master is not answerable to him therefor. When he asks the reason for this rule; why the general maxim "respondeat superior," should not be applied, he is told, somewhat facetiously, it would seem, that if he be denied compensation from the common master in such cases, it will make him a more careful observer of the conduct of his co-employees.

A further reason given for the rule is that of implied contract, and the implication is raised in this wise: That when I undertake to serve an employer in any business in which I know he must necessarily, in order that such business may be conducted to a successful issue, employ many others to serve him in its various departments, I must be aware that I am liable to be injured through the negligence or incompetency of these other servants, even though the common master shall have exercised proper care in endeavoring to procure careful and competent persons to serve him in all departments of his business. Knowing, then, that I will be exposed to these dangers, I must be presumed to have stipulated for a rate of wages sufficient to compensate me for such risk. By virtue of my contract, then, I become my own insurer against all the ordinary perils of the employment; that these ordinary perils are such as I must have foreseen I would be exposed to, among which, of course, is the negligence or incompetency of any other servant of the common master, (the master himself being without fault or negli

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an action for damages sustained by a boy in the employment of defendant. The ground of complaint was that the boy being employed by defendant to do certain work at his planing mill, not at all hazardous, was required by defendant's foreman to do other work which was dangerous, and in doing which the injury resulted. On the trial of the case the court instructed the jury that if they found "as a consequence of such change of employment the accident happened, and that the same could not have happened but for such change of employment, then they should find the defendant guilty." BREESE, J., who delivered the opinion of the court, says, that the instruction was faulty, because it totally ignores the negligence of the plaintiff, which might have been the real cause of the injury. Reversed and remanded.-Sinclair v. Berndt.

TAXES-ASSESSMENT-RETURN-COLLECTOR.-This is an appeal from the judgment of the county court against certain lands for taxes. The lands in question were returned as delinquent by the "South Park Commissioners, to the county collector, and afterwards were returned by the county collector as delinquent. Appellants insist that the return to the county collector is required by law to be made by the collector appointed by the commissioners, and that a return by the commissioners themselves is not such a return as is essential as a basis for a judgment against the lands. DICKEY, J., after citing and discussing the terms of the statute under which this assessment was made, says: "It is insisted in this case that inasmuch as these South Park Commissioners did appoint, as their officer for the collection of this tax, a collector (as authorized by the statute) with 'full power and authority to collect this installment of this assessment and to give all proper receipts therefor,' it follows that the return to the county collector of lands in this regard as delinquent, could only be made by this collector, who was the 'officer' of the Park Commissioners. • In view of all the terms of the statute, we think that the commissioners were the proper persons to make this return to the county collector, and that the position of appellant can not be sustained." Affirmed.-Smith v. People.

EQUITY-MISTAKE-SPECIFIC PERFORMANCE.-The nature of the suit and the question at issue is sufficiently clear from the following abstract from the opinion of BREESE, J., who decided the case: "It is not questioned that chancery can correct a mistake in a contract, and after reforming the contract can demand specific performance. It is insisted by appellant that appellee is seeking to enforce a parol contract for the sale of land, inasmuch as he is obliged to resort to parol evi





dence to make out his case. The contract in question is a written contract, attended by a mistake as alleged in describing the land. It is quite a familiar doctrine recognized by this and other courts, that parol evidence may be resorted to for such purpose. The terms of the contract are in writing, and no resort to parol proof as to them is had. The bill alleges that a written contract was entered into for the conveyance of a certain tract of land, but the tract was mis-described as being in a quarter of a section to which the vendor had no title, but had title to the tract intended to be conveyed in another quarter of the same section. The next point appellant makes is, that if the allegations in the bill were proper, the proof is not sufficiently clear to authorize a decree for a specific performance. The court must be satisfied such a contract has been made as alleged; and not only this, but after a long period has elapsed a court should be cautious in enforcing a specific performance of a contract where there is any real doubt about its existence and its terms. Rector v. Rector, 3 Gilm. 105." Reversed.-Thompson v. Sage.



upon a promissory note. With the declaration, plaintiff filed his affidavit, stating that "the above-named defendants are justly indebted to him, after allowing all claims and set-offs whatever in the sum of," etc. Defendants filed plea of non-assumpsit, but filed no affidavit of merits. On motion of plaintiff, a rule was obtained upon defendants to file an affidavit, which not being done, their plea was, by the court, stricken from the files, and a default entered. Appellants insist that the affidavit of plaintiff, set forth above, was not such a compliance with the statute as gave him a right to demand of defendants an affidavit of merits. DICKEY, J., says: "The statute provides for an affidavit to be filed with the declaration in such case, stating the amount due him from defendant after allowing to defendant all his just credits, deductions and setoffs.' The words of the affidavit filed in this case substitute the phrase 'all claims and set-off's whatever.' When a plaintiff wishes to avail himself of any such provision he must, no doubt, show that the case is brought within the statute, and where any preliminary thing is provided by the statute to be done by the plaintiff in order to place defendant within the restricttions of such statute, defendant has a right to demand that plaintiff strictly conform to the statute himself (which is in derogation of the common law), before he can call upon defendant to be subject to its provisions." Judgment was, however, affirmed, because there was nothing in the record to show that the attention of the circuit court was called to the defects in the affidavit.-McKenzie v. Penfield.

CONTRACT-OVER-PAYMENT — NEGLIGENCE.-This was an action brought to recover the price of milk, which had before that time been delivered from time to time to defendant. Defendant defends upon the ground that he bought milk of plaintiff at a certain price per can, each of which was supposed to contain eight gallons, and that he paid plaintiff a large amount of money upon that basis, and claimed a credit for money over-paid by mistake in supposing the cans contained eight gallons each, when, in fact, a part of them were short. On the trial, the court instructed the jury as follows; "That if you believe from the evidence that before or during that time he received or was receiving the milk of the plaintiff for which he now claims his set-off for shortage, the defendant

* had such notice thereof that by the exercise of ordinary prudence and diligence he would have known that plaintiff's cans were not up to the standard of eight gallons, and that plaintiff had no knowledge of any such shortage, and that defendant with such notice and means of knowledge paid the plaintiff

in full for each month's milk without any claim for shortage, then he can not set-off in this action any sum for such shortage accruing since such notice." DICKEY, J., says: "This is not the law. The contract under which the milk was sold was for a given price per gallon. It was the duty of plaintiff to see to it that his cans should hold the quantity which he professed that they held. It does not lie in his mouth to complain that defendant did not watch him with the care which the circumstances seemed to demand." Reversed and remanded.-Devine v. Edwards.



- Plaintiff brought replevin against defendant for property which defendant (as bailiff of D and others) had seized, upon a distress warrant against E. After the suit had been long pending, a stipulation was filed that the suit should be dismissed, and that each party should pay his costs. This was signed by 8, the plaintiff, and S, the defendant, and the case was accordingly dismissed. Before the action was dismissed an attorney appeared for S, the defendant, with a power of attorney from S, authorizing him to manage the suit, and discharging all other attorneys; and motions were made first by S, the defendant, and afterwards by the plaintiff to dismiss the case, without an order for the return of the property, and without judgment for defendant for costs. Both of these motions were resisted by an attorney acting in the name of S, the defendant, but really for and in the interest of D. The court refused to allow this to be done. Appellant insists that S, defendant, being the party of record, his consent to such an order was sufficient grounds for such an order, and that D, not being a party to the record, could not properly interfere in the action. "This po sition is untenable," says DICKEY, J., who delivered the opinion. "The record showed that defendant was merely a bailiff of the property for D. Having taken upon himself that fiduciary character, he was bound in good faith to protect their interest so long as he occupied that position. It has long been the practice of courts of law to look through the nominal parties to the rights of the real parties in interest, and where a necessary nominal party fails or refuses to use his name in prosecuting or defending a suit, courts of law will permit the real party in interest to use the name of the nominal party. It is plain that when the plaintiff, S, made the stipulation in question, he knew the fiduciary character of S, the defendant, and knew that the making of the stipulation by defendant was an act of bad faith upon his part. The court was right in setting aside the order based upon that act of bad faith." Judgment affirmed.-Sumner v. Sleeth.

[Filed at Mt. Vernon June 18, 1878.]

GOODS DESTROYED BY FIRE WHILE IN WAREHOUSE-LIABILITY — DEFENDANTS ROAD IN HANDS OF TRUSTEES-EFFECT.-This was an action at law brought to the circuit court for the recovery of the value of certain goods delivered by U to the agent of the G. T. T. Co., to be cartied over its road, and which were destroyed by fire while in the depot of the company, and before being loaded on the cars. U obtained judgment and the company appealed. DICKEY, J. (abstract of opinion): The declaration contains three counts. The first and second are so defective that no recovery could be had on them. The court charged the jury that if the plaintiff has proven the averments in any one count of the declaration, they should find for the plaintiff. This was error, and for this the judgment must be reversed. It is claimed that the liabilily, if any, was as warehousemen and not as common carriers. This position is not tenable. Although the goods were in the depot or warehouse, it was for shipment at the earliest convenience of the carrier and not for storage. It is also insisted no action can be

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