for delivery. But he did send on the following Friday, the 22d. On this occasion his servant did not get any ticket. When he applied for it at the usual place he was told he did not require it-that he was to go to the distillery, and get his load and pay for it. He accordingly went to the distillery, and waited there until his name was called, when he received and paid for his load. The quantity he received was thirty, not twenty bushels. He paid £1 for it, which, it was admitted during the argument, was at the same rate as the plaintiff had paid prior to the 13th of March. On cross-examination, the servant said that he saw the bulk lying in the distillery yard, which, contrary to usage, he was able to enter, in consequence of the turnstile having been burned down.

The plaintiff proved that he bought the grains for the purpose of feeding cattle, and there was evidence that the defendants knew of this purpose. It was also proved that the grains sold on the 22d, contained lead, which caused the death of several of the plaintiff's cattle.

The defendants' counsel, at the close of the plaintiff's case, and, again, at the close of their own evidence, called upon Mr. Justice Lawson to non-suit the plaintiff, or direct a verdict for the defendants. The grounds of this request are not stated in the report, and, as far as I can gather, were not mentioned at the trial. The learned judge declined to direct, but left the case to the jury. No objection was taken to the mode in which the case was so left, if it should have gone to the jury at all. The defendants' contention throughout was that they were entitled to have a verdict directed for them. The jury found for the plaintiff, and leave was reserved for the defendants to move to have the verdict entered for them, if the requisition of the defendants' counsel ought to have been complied with. Upon the argument before us, the defendants' counsel insisted upon two propositions. 1st. That the sale of 22d March was not upon the terms of the previous dealings, but was a sale of goods known to both parties to have been damaged by fire, and sold with all faults. 2d. That even if the sale were upon the terms of the previous dealings, there was no implication of the warranty relied on in the statement of claim.

In my opinion, the first contention of the defendants can not be maintained. I think it clear that it was for the jury to say whether the sale of 22d March was upon the terms of the previous sales. Those acting for the plaintiff were not informed that the grains delivered upon that occasion were to be received on terms different from those which governed the former deliveries. The old arrangement, prima facie at least, entitled the plaintiff to a delivery on the 22d. Under the third clause of the printed terms, the plaintiff was liable to forfeit his privilege as special customer if he declined to accept on this occasion. There was evidence that both parties acted, to a large extent, according to the practice which had been theretofore pursued as to special customers. The plaintiff's servant asked for a ticket, and his name was called when his turn came, according to his place on the special customers' list. The price paid was the price und

er the old arrangement, and this price was not the subject of agreement at the time. It was paid by one party and received by the other, as if the amount were a matter not open to discussion. It is true that the ticket was refused when asked for at the office, and that payment was made, not there, but in the yard; but these circumstances might not unreasonably be attributed to the turnstile having been burned down. It is also true that the former sales were sales of an article which the purchaser had not an opportunity of inspecting before delivery, and that the accident of the turnstile having been burned down, rendered it possible for the plaintiff's servant to have on this occasion examined the heap from which his load was to be taken. This opportunity of inspection would be of much importance if we had once arrived at the conclusion that there had, in fact, been a new contract as to the supply of the 22d March, and if the question were the effect in law of such opportunity of ins pection on the implication of warranty, which might otherwise have arisen. But, on the question of there being, in fact, a new contract, the circumstance appears to me to be of little importance. The servant was sent to receive a load, to the delivery of which the plaintiff was prima facie entitled under the then existing arrangement. He was not authorized to ascertain the quality of the grains, or to receive or reject upon the result of his inspection In fact, he received the load without having exercised any judgment. The defendants also rely upon the quantity received having been thirty, instead of twenty, bushels, but this may have been attributed, by the jury, to there having been no delivery upon the immediately preceding Friday.

Upon the whole, I am clearly of opinion that there was evidence that the delivery of the 22d of March was made upon the old terms. This brings me to the second question: Is the warranty relied on-viz., that the grains were fit for feeding cattle, implied in such a contract for sale as that upon which the former delivery was made? It was a contract to supply a product which, although resulting from a manufacture carried on by the defendants for the purpose of producing another ararticle-viz., whisky-was an article in which the defendants dealt. It was an article of which, according to the usage, the purchaser had not an opportunity of inspection before delivery, and it was bought by the plaintiff, to the defendants' knowledge, for the purpose of feeding cattle. But, on the other hand, there does not, upon the evidence, appear to have been more than one description of grains produced in the manufacture. The entire so produced was treated as one bulk, and each customer was supplied out of so much of this bulk as remained at the time appointed for his attendance.

Those being the facts, I am of opinion that the warranty pleaded was not implied. In the first place, I think that the liability of the defendants here is as dealers, and not as manufacturers. In my opinion, the defendants are not manufacturers of grains, in the sense in which that word is used in reference to implied warranties of fitness. No doubt they reduce corn into the condition of grains, but they do so solely in the course of manu

facture of another article-whisky. Their position as producers of those grains lacks the element upon which, in my mind, the liability of the manufacturer rests-viz., the power so to control the manufacturing process that a given result in the manufactured article can be arrived at. To attempt to alter or control the manufacture of whisky for the purpose of altering the character of the grains produced, would be inconsistent with the assumption which, on the evidence, I think, I am bound to make, that the sole object of the manufacture is to produce whisky. I do not say that there may not be cases in which the producers of a substance which it was not their primary object to manufacture, may not be manufacturers of that secondary product. All I say is that this is not one of those cases. Let us then take the liability of the defendants as dealers. The law upon the subject is settled by several cases, of which Jones v. Just, L. R. 3 Q. B. 197, is the most important, and may, in my opinion, be stated as follows: Where a dealer contracts to supply a known and defined article, then, although it be stated that such article is required for a particular purpose, if the known and defined thing be supplied, there is no warranty that it shall answer the particular purpose intended by the buyer. But if the contract be not in relation to a known and defined thing, but to supply something in which the seller deals, and for the selection of which the buyer, according to the contract, necessarily trusts to the judgment or skill of the seller, then, if to the seller's knowledge that article is to be applied to a particular purpose, he impliedly warrants that it is reasonably fit for that purpose. In the first case, the purchaser, by his contract, defines the thing which he is to get, and reposes no trust in the seller, who can perform his contract only by selling the defined thing. In the second case, when the buyer necessarily trusts to the skill or judgment of the seller, the description in the contract of the thing to be supplied must be such as can be satisfied by articles of more than one kind; otherwise, it would be the case of a contract for a defined article, with which I have already dealt. Then the obligation, or, at least, the option to select, out of all the articles which will satisfy the description in the contract, the particular article to be supplied, must be in the seller. It is in this selection that the buyer trusts the judgment and skill of the seller, and the latter must, in such a case, select, as far as is reasonably possible, an article fit for the purposes to which it is to be applied.

It is hardly necessary to illustrate my meaning, but it can be easily done. If I order from a wine merchant a certain quantity of claret at a price named, for the purpose of sending it to a particular place abroad, which I also mention to him, any claret will answer the description in the contract, but in selecting out of all the clarets procurable at the price I name, the particular claret which he will supply to me, he must select one, if such there be, which will bear the voyage to that particular place. But if I order claret not by a general description, but claret of a particular vineyard, vintage, and brand, the contract can not be performed

by the wine merchant unless he gives me that particular wine; and, although he knows that I intend to send it to a particular place abroad, he does not warrant that it is fit to be so sent. I undertake the risk that claret of that vineyard, vintage, and brand will bear the voyage when I order that defined thing for the purpose.

Now, let me apply these principles to the case before us. The grains are the product of one manufacture. There does not appear to be more than one species or kind of grains produced by the manufacture. Under the contract no trust is imposed on the defendants to exercise skill or judgment in the selection of the particular grains to be supplied to the plaintiff. They were under no obligation to make, nor indeed was there room for them to make, a selection for the plaintiff of any particular part of that with which the parties dealt as one uniform whole. They could not satisfy their contract otherwise than by giving him part of this known and defined thing. It follows, in my opinion, that a warranty of fitness was not implied. It may be said, in answer to what I have just stated, that the grains in fact supplied were not part of an uniform whole-that they were adulterated with a foreign substance, lead. That is so; and that admixture (an admixture which, there is evidence, rendered the substance useless and dangerous as grains) might be cogent evidence to prove that what was delivered did not reasonably answer the description of grains, and might thus prove a breach of a warranty different from that relied on. But what took place upon this exceptional occasion cannot affect the nature of the warranty arising from the course of dealing in reference to which the parties contracted.

I am, therefore, of opinion that upon the pleadings as they stand, the verdict ought to have been directed for the defendants. I am, however, by no means prepared to say that upon other pleadings the plaintiff might not have recovered upon the facts proved. It seems clear that a warranty was implied that the thing sold reasonably answered the description of distiller's grains, and there was, as I have already stated, evidence of a breach of that warranty. I, therefore, more than once suggested during the argument, that an application for an amendment of the statement of claim might have even then been entertained. No such application was, however, made. The verdict must, therefore, be entered for the defendants pursuant to leave reserved, and there must be judgment for them.

FITZGERALD and DowSE, BB., concurred.

A complicated chicken case has taxed the legal acumen of a Georgia court. The party of the first part assumed to own the hen, and the party of the second The part was charged with having stolen the same. hen was introduced in evidence and duly identified, but while two ex-judges were arguing the case on its merits, she laid an egg in court. As soon as her cackle had advertised this new complication, the party of the first part claimed it as the product of his property; the party of the second part put in a counter bid; the judge on the bench was disposed to regard it a judicial perquisite; and the janitor mumbled something about the nine points.

as

1. POWER OF COURT TO ORDER PRODUCTION OF TELEGRAPHIC MESSAGES-CONTEMPT.-Telegraphic messages are not exempt from the process of courts. B, the local manager of a telegraph office, was, by a subpoena duces tecum, issued by the criminal court at the instance of the grand jury, ordered to search for and produce certain telegrams therein named, but he refused to examine the files of the office, or to produce the telegrams. The inquiry was for the purpose of finding indictments against persons other than B. Held, that the criminal court did not exceed its jurisdiction in committing B for contempt in refusing to obey the subpœna.

2. CONSTRUCTION OF STATUTES AS TO DISCLOSING CONTENTS OF MESSAGES.-The statutes providing a punishment for the disclosure by any officer or servant of a telegraph company of the contents of a dispatch and giving damages for the disclosure, do not apply to a case where the dispatches are called for by legal process, in which case any disclosure made is the act of the law, and not of the company.

3. SUFFICIENCY OF DESCRIPTION IN SUBPOENA.A call, in a subpoena issued by a grand jury, for any and all messages passed between certain named parties during the last six months, is sufficiently certain without reference to the subject-matter. The obligation of secrecy imposed on the grand jury is a sufficient ground for not further indicating the subject-matter.

Habeas Corpus:

HAYDEN, J., delivered the opinion of the court: The contention on the part of the petitioner is, that it affirmatively appears on the face of the papers that the criminal court, by which the petitioner was committed for contempt, exceeded its jurisdiction in committing for the supposed offense. The only contempt, it appears, was the petitioner's refusal to search for and produce certain telegraphic dispatches, alleged to be in the office of the Western Union Telegraph Company, in the city of St. Louis, of which company the petitioner is manager in that city, in obedience to a subpœna duces tecum issued by the criminal court at the instance of the grand jury for the city of St. Louis. This subpoena commands the petitioner to appear before the grand jury and there testify in a matter pending before them, and there to produce "any and all telegraphic dispatches or messages, or copies of the same, now in the office of the Western Union Telegraph Company, of which you are manager, and which dispatches and messages are now in your possession and under your control," etc. Here various persons are named as persons between whom dispatches passed, thus, "between Dr. J. C. Nidelet and A. B. Wakefield and Wm. Ladd and J. C. Nidelet," etc., and the subpoena, after thus naming the persons, continues "and any and all telegrams or copies or originals that may be in your possession, which may have been sent or received by or between any or all of the above-mentioned parties within the last six months," etc. In obedience to the writ, the petitioner appeared and testified

before the grand jury, but, for reasons noticed below, declared, in answer to questions put, that he refused to examine the files of the company in the office of which he was manager for the dispatches or copies. It appeared that these inquiries were made with a view of finding indictments against persons other than the petitioner for offenses committed within the proper jurisdiction. The petitioner, being admonished in open court and still refusing, was committed as above stated.

On the part of the petitioner the attempt is made to put his case on the broadest grounds, and the general questions involved will, therefore, be considered at first without reference to authorities.

It is evident that there is no found ation for the position of the petitioner as to the exemption of these messages in any natural right, even if he is considered here as representing the senders and receivers of these telegrams, as well as his own company. Whatever may be said as to a man's thoughts, where, by communication on his part, those thoughts pass into the region of action, it becomes merely a matter of political regulation how far the State will go in compelling evidence of that action. The very provision—perhaps universal in the constitutions of our States-against unreasonable searches and seizures, and general and indefinite warrants, shows what primordial rights the individual has been willing to surrender to the State, even when the privacy of home has been invaded.

The people, in their fundamental law, expressly provide that even this sanctity shall not remain inviolable against the hand of criminal justice. The provision of our constitution, however, (Constitution of Missouri, 1875, Bill of Rights, article 2, section 11), has little bearing upon the present question except by way of argument and illustration. The general warrants of England, and the writs of assistance of this country involved questions of a different nature from those relating to the social acts of the accused parties. Apart from the general nature of the warrants, which was the great evil and the decisive ground of illegality—a truth which is perpetuated in the language of the constitutional provision-the point was the indiscriminate seizure of all papers which the accused preserved in the privacy of his home, and the illegality of compelling by force the communication of the contents of those papers, thereby constraining the person, so far as the papers availed against him at all, to be his own accuser.

The difference is too obvious to be dwelt upon, where the communication is the act of the person himself. It is said, indeed, that the communication by telegraph is not voluntary, as it is made, not because the person desires it, but because he must, in order to so communicate, put the operator in possession of the facts. Cooley, Const. Lim., p. 307, note 1. But that the act of the persou, in thus communicating is, in a legal sense, a voluntary act, is apparent.

The will of another does not, as it did in the case of Wilkes (Wilkes v. Wood, Lofft's Rep. 1). disclose the contents of the papers. There is precisely the same voluntariness in the act of a sender of a tel

egram, however much he may dislike sending the message, that there is in the act of the principal, who, driven by necessity, utters in presence of his agent secrets, the disclosure of which may ruin the principal's business. In such case, the principal does not receive protection against disclosure by the agent, on the ground that the act of communicating was against the principal's will. Whether made in writing or orally, the act of communicating as such is the act of the person, and a man's acts are evidence against him.

The act of sending and that of receiving thus subjecting the persons to the ordinary consequence of having their acts used as evidence against them, why should there be an exception in case of communication by telegraph? It is not claimed that the relation of the parties or the subject-matter of the messages forms any ground of exception simlar to that existing in case of husband and wife, or attorney and client.

The question is merely of the production of the dispatches, as such. If the parties to them, or their subject-matter, afford legal grounds of objecion to the admission of their contents in evidence, under established rules, such objections can be made when the telegrams are produced.

Here the question is of the mere production, and the contention is that that production can not be compelled. To their production as telegrams there can be no objection on the ground of parties or subject-matter. A ground taken, however, in argument, is that the sender and receiver desire the messages to be kept secret. But even this is an assumption. Where, as here, we are bound to believe that it is necessary for the purposes of criminal justice that the best evidence should be produced-and the ability of courts of law to protect life and property must largely depend on the production of the best evidence-it ought rather to be assumed, as the telegraph company undertakes to retain custody of the originals long after the transmission, that there could be no objection to their production for lawful purposes. It is, in fact, so far as we can know, the company who resists production, not the parties to the dispatches.

But even if this assumption is allowable in such a case as the present, that sender and receiver object to the production, what does this objection amount to when tested by legal principle? Communications regarded by the parties as sacred, those from father to son, from brother to sister, from partner to partner-the closest secrets of the family or the firm-the law ruthlessly lays bare. On none of these grounds is the position tenable. The argument bases itself on the mere method of communication.

It is, then, in the physical means that we must find reasons for the conclusion that a new rule must be adopted, exempting telegrams in a company's hands from a well-settled course of practice as to the writ of subpoena duces tecum.

The argument at this point centers on an assumed analogy between communication by government post and by telegraph. It is difficult to discern either physical or legal basis for this argument. The sender by post does not select a method by

which he communicates the contents of his package even to the officers of the government, much less to a mere private person or company. The sender by post does not necessarily send any message at all, but perhaps only inclosures. He transmits a package in bulk.

The sender of a sealed package, by the mere method chosen, preserves its contents as private until the receiver unseals it, as if the package has never left the sender's desk. and such is the legal effect. Ex parte Jackson, 96 U. S. 727. The physical analogue of the telegraph is rather the telephone, since both, in their essential parts, are methods, not by which packages, of contents unknown to the carrier are sent, but by which, through a substantial medium, persons at great distances from each other may converse.

It is true that writing becomes essential to telegraphy as a business, but the question now is as to the closeness of the physical analogy. The argument serves to show there is little foundation for comparison with the post, and to remind us that original telegrams are not "papers," otherwise than as any open messages might be so called, which, for convenience in communicating them to the messenger, had been written on pieces of paper. That the sender by telegraph is forced to communicate the contents to the operator is immaterial, since the sender chooses to telegraph. In a legal sense the act and its concomitants are voluntary.

The legal basis for comparison with the post is still less. Communication by post depends upon provisions of statutory law, and these statutes do not apply to the telegraph. It is said that no statute expressly forbids the production before the grand jury of letters from the government mails. But the post office laws are inconsistent with such production; nor could the mails be carried if, in every State the right of search were exercised. Again, it is not only under powers delegated by the people of the States to the Federal government that the latter has undertaken the control of the mails, but Congress has practically made the post a government monopoly. Even if it be held that the constitutional grant extends to telegraphs (Pensacola Tel. Co. v. Western, etc., Tel. Co., 96 U. S. 1), the power has not yet been exercised. The post office, in the sense of the mail service, is a department of the Federal government, and with the mails, as they are carried under acts of Congress, the States cannot directly or indirectly interfere. By what authority can it be assumed that a private person or company, engaged in the business of telegraphy, stands in relation to the State governments as does the Federal government when acting under express laws? But even the Federal government assumes no such privileges, as against the States and their legal process, as the private companies engaged in the business of telegraphy. What the post office department undertakes to do is merely to carry and deliver, not to retain, for its own purposes, and at its pleasure, "the best evidence" of a vast number of transactions. Letters are privileged only for the brief time they are in transit, and they become, when delivered, subject to the process of the courts. They have no inviolability

66

as papers, ," but merely as mail communications in transit.

Again, for the government to allow seals to be broken open would be for it to violate trusts. It could not, without breaking faith with those whom it virtually compels to send their letters by mail, permit seals to be broken under its own or under State process. It is not merely that a law exists punishing an offender who breaks the seal of a letter in the mail. It is that the seal itself is a recognized type of inviolable secrecy, and that by a custom well established, both in this country and England, the powers of State refrain, even where special acts give an exceptional authority, from opening sealed packages intrusted to the government for carriage. But no such type of secrecy, and no such trust or custom exists in a case of the telegram. The sender, the receiver and the company know that, upon due process of law, the original message and copies-which the company has chosen to keep and to take the consequence of keeping-must be produced; for such is the law.

By our statutes it is provided that any person connected with any telegraph line constructed wholly or in part in this State, either as clerk, operator, etc., who shall willfully disclose the contents or the nature of any message or communication intrusted to him for transmission or delivery, except to a court of justice, to any person other than to whom it is addressed, or to his attorney or agent, etc., shall, upon conviction, be punished, etc. Wag. Stat. p. 507, sec. 51. By a clause in another section of the statutes, it is provided that every telegraph company, etc., shall be liable for a penalty, and special damages in addition, for the disclosure of the contents of any private dispatch to any person other than to him to whom it was addressed, or to his agents, etc. Wag. Stat., p. 325, sec. 13. If the provision first quoted did not exist, the last would raise no intendment in favor of the position of the petitioner. The object of this last provision is obvious. To stretch it beyond its express meaning, and assume a policy of law, is to beg the question. Besides, the construction of such acts is well settled. It is understood that there is always an exception in favor of legal process. Here the company, when called upon by the courts, discloses the contents of no dispatch. If the contents are disclosed-and it does not follow that they will be-the disclosure is the act of the law, not that of the company. As said by Lord Ellenborough in a parallel case, where the clerk of an official had, on entering upon his office, taken an oath not to disclose anything he should learn in that capacity, there is "an implied exception of the evidence to be given in a court of justice in obedience to a writ of subpoena. The witness must produce the book and answer all questions respecting the collection of the tax as if no such oath had been administered to him." Lee v. Birrell, 3 Camp. 387.

After what has been said it is unnecessary to dwell upon the consequences which would follow if the production of telegrams-great as this mass of evidence is, and relating to transactions Infinite in number-were not left to that uniformity which

can be secured only by a fixed rule of law. Since the evidence may be competent (if it can only be obtained), and, if competent, the court would have no power to exclude it, the guilt or innocence of a person is made on the theory urged, to depend not upon the operation of a rule of law which is uniform in every case, but upon private interest or caprice. Certainly, if telegrams are to be produced in any case of a criminal nature, there should be the power of compelling their production in all cases. Evidence of this kind should be uniformly admitted when competent, or uniformly excluded. Nor is it necessary to do more than to advert to the fact that if the great avenues through which the business of the community passes, and in which evidence remains, are to be closed to the powers of the courts; if, as new methods of communication spring up, the courts are to be debarred from these sources of truth, they are, so far forth, liable to fail in the chief purpose which they are created to accomplish. Undoubtedly great inconveniences may arise to telegraph companies through subpœnas duces tecum; but that they have original evidence of transactions in their possession is the necessary result of the business as they carry it on; and they, like others, must submit to those annoyances which are consequent upon the execution of the laws.

Thus we have reached the conclusion that, upon principle and apart from authority, the position of the petitioner is not tenable, while, so far as adjudged cases are produced, they are uniformly to the effect that there is no peculiarity in telegraphic messages, as such, which exempts them or their contents from the process of the courts. Commonwealth v. Jeffries, 7 Allen, 548; National Bank v. National Bank, 7 West Va. 544; State v. Litchfield, 58 Me. 267; Heinsler v. Freedman, 2 Pars. Sel. Eq. Cas. 274; Inces's Case, 20 L. T., N. S. 421. Taat telegraphic communications should be regarded as privileged, is maintained by Judge Cooley. Const. Lim. 307, note 1; Am. Law Reg. for February, 1879, 65. In United States v. Babcock, 3 Dill. 567, 3 Cent. L. J. 101, the question above discussed was not raised.

What has been said serves to show that it is no excuse for the petitioner that to comply with the writ would require him to neglect his duties to the company, or that he has been instructed, by his superior officers, and by his employer, the company, not to produce the telegrams. Nor can he urge that he has no control over these dispatches because his duty is merely to keep them, as directed by the company. He is, as he testifies, the manager of the St. Louis office, and, as such, has the custody and control of the dispatches or copies called for, if there are any such telegrams in his office, and for these he has refused to search. The present is not the case of a clerk, or subordinate, summoned to produce papers not under his control. President v. Hillard, 5 Cow. 153; Hustin v. Evans, 2 M. & G. 446. The company is here a corporation which can act only through agents, and service need not necessarily be upon the president, but may be upon the person who has the actual control and means of effectually responding