Afterwards, in 1843, in a nisi prius case, Webb v. Paige, 1 Carr & Kirw. 23, a witness, who was called for plaintiff, to speak as to damage done to some furniture, and the expense necessary to repair or restore the injured articles, before being sworn applied for compensation for his loss of time. Maule, J., said: "There is a distinction between the case of a man who sees a fact, and is called to prove it in a court of justice, and that of a man who is selected by a party to give his opinion about a matter with which he is peculiarly conversant from the nature of his employment in life. The former is bound, as a matter of public duty, to speak to a fact which happens to fall within his knowledge. Without such testimony the course of justice must be stopped. The latter is under no such obligation. There is no necessity for his evidence, and the party who selects him must pay him." It is said that one or more like decisions have been made by judges on the circuit in England, but we have no report of them, if there be any, within our reach here. The case in which the reasons for such a ruling are best expressed, is In the Matter of Roelker, in the District Court of the United States for Massachusetts -Sprague's Decisions, 276. During a trial, upon an indictment, the district attorney moved for a capias against Roelker, a German, who had been summoned to act as an interpreter of the testimony of some German witnesses, and had neglected or refused to attend. Sprague, J., said: "A similar question has heretofore arisen as to experts, and I have declined to issue process to arrest in such cases. When a person has knowledge of any fact pertinent to an issue to be tried, he may be compelled to attend as a witness. In this all stand upon equal ground. But to compel a person to attend merely because he is accomplished in a particular science, art, or profession, would subject the same individual to be called upon in every cause in which any question in his department of knowledge is to be solved. Thus, the most eminent physician might be compelled, merely for the ordinary witness fees, to attend from the remotest part of the district, and give his opinion in every trial in which a medical question should arise. The case of an interpreter is analogous to that of an expert. It is not necessary to say what the court would do if it appeared that no other interpreter could be obtained by reasonable effort. Such a case is not made as the foundation of this motion. It is well known that there are in Boston many native Germans and others skilled in both the German and English languages, some of whom, it may be presumed, might, without difficulty, be induced to attend for an adequate compensation." The head-notes, prepared by Judge Sprague himself, to this case, are as follows: "The court will not compel the attendance of an interpreter, or expert, who has neglected to obey a subpœna, unless in case of necessity. Semble. That a person may be compelled to attend as an interpreter, in case no other can be obtained to perform that office." These are all the decisions we have found that shed light on the question in

* * * *

volved. And those in England were influenced by the statute on the subject of 5 Eliz., ch. 9, which enacts that the witness must have tendered to him, according to his countenance, or calling, his reasonable charges." But in this country, as Mr. Greenleaf says (1 Ev., 12th Ed., § 310), "these reasonable expenses are settled by statutes at a fixed sum for each day's actual attendance, and for each mile's travel from the residence of the witness to the place of trial and back, without regard to the employment of the witness or his rank in life." See also Revised Code, §§ 2783, 4220 and 4015 to 4021.

We have quoted so largely from the opinions of courts in causes before them to be adjudicated, partly because it was desirable it should be known what was actually decided, and partly because of the interest taken in the question by gentlemen of the medical fraternity. They have been led into some error on the subject by the misconceptions of writers whose works relating to medical jurisprudence are properly found in their libraries, as well as in those of lawyers.

It will be noticed that it has not been adjudged, in any of the cases cited, that a physician or other person examined as an expert is entitled to be paid for his testimony as for professional opinions.

The reports contain nothing to this effect. The English cases only indicate, and it is implied by the decision of Judge Sprague, that persons summoned to testify as experts ought to receive compensation for their loss of time. And it is to be inferred that the judges delivering some of the opinions thought the time of such a witness ought to be valued, in the language of the English statute, "according to his countenance and calling." But it is not intimated by any of them, that a physician, when testifying, is to be considered as exercising his skill and learning in the healing art, which is his high vocation; or that a counselor at law, in the same situation, is exerting his talents and acquirements in professionally investigating and upholding the rights of a client. If this were so, each one should be paid for his testimony as a witness, as he is paid by clients, or patients, according to the importance of the case and his own established reputation for ability and skill. But, in truth, he is not really employed or retained by any person. And the evidence he is required to give should not be given with the intent to take the part of either contestant in the suit, but with a strict regard to the truth, in order to aid the court to pronounce a correct judgment.

Perhaps the attitude of one testifying as an expert on a matter in respect to which he is made conversant or skilled by his ordinary employment, is not so different, as is supposed, from that of another who testifies to acts or things done by or between the parties to a cause. It generally happens that, after all the direct facts of a transaction are brought before a court, a knowledge of other facts, not part of the dealing or affair between the litigants, is necessary to a proper understanding and decision thereupon. For instance, one man may contract to sell and deliver to another, on a certain future day, for a price agreed on, a speci

fied quantity of a valuable commodity, and afterwards fail or refuse to do so, and thereupon be sued by the latter. Witnesses to the agreement between them must be produced to prove the contract, of course; but when this is fully done, it must be further shown to the court and jury what was the value of the commodity on the day and at the place where it was to be delivered; else it can not be known what sum of money would be an adequate compensation for the breach of the contract. And to prove this value it may be necessary to call in some person who was living at that place at that time, and a dealer in commodities of the same kind, who did not know, and had never before heard of, the parties to the cause. Or, if the contract supposed was made in a country foreign from that in which the suit was brought, and it depended upon the laws of that foreign country whether it was valid or not, the court would need to be informed what its laws were concerning the making of such a contract, that it might know whether or not it was validly made. And if lawyers of that country were within the jurisdiction of the court, it might be necessary to have the testimony of one or more of them to prove what those laws were. Or, if the contract was made and to be performed in a place of much trade, and contained terms having a peculiar but well established meaning according to the usage and dealings among persons engaged in that trade, which meaning it was important to have proved, merchants, or persons engaged therein would have to be brought before the court to prove the usage and meaning, just as an interpreter would be called in to translate writings in a foreign language.

In all these instances, persons who may be wholly unacquainted with the parties to a cause, and know nothing of the transactions between them, may be required to come from their offices and the care of their own important affairs, into court to testify for the benefit of strangers, in regard to matters in which they have themselves become conversant only by attending to their own business. And why are they required to do so? Because they know things important to the right determination of a controversy pending. And, in the language quoted at the commencement of this opinion, "the law allows no excuse for withholding evidence which is relevant to the matters in question before its tribunals, and is not protected from disclosure by some principle of legal policy;" and because, also, as is well said in regard to ordinary witnesses in Ordroneaux's "Jurisprudence of Medicine": "The administration of justice being a source of mutual benefit to all the members of the community, each is under obligation to aid in furthering it, as a matter of public duty. As an ordinary witness, or a juror, every competent citizen may be summoned by due process of law to appear and render personal service in court, without right on his part to a special compensation for so doing. His time is, quoad hoc, claimed by the public as a tax paid by him to that system of laws which protects his rights as well as those of others." Ed. of 1869, p. 138. But this accomplished and learned writer does not sustain,

with the authority of adjudged cases, the following subsequent passage in his work, to wit: "It is evident that the skill and professional experience of a man are so far his individual capital and property that he can not be compelled to bestow it gratuitously upon any party. Neither the public, any more than a private person, have a right to extort services from him in the line of his profession, without adequate compensation. On the witness stand, precisely as in his office, his opinions may be given or withheld at pleasure; for a skilled witness can not be compelled to give an opinion, nor committed for contempt, if he refuses to do so. Whoever calls for an opinion from him in chief is under obligation to remunerate him, since he has to that extent employed him professionally; and the expert, at the outset, may decline giving his opinion, until the party calling him either pays or agrees to pay him for it." The first two sentences above quoted are probably correct as general propositions. And the same might be as truly said of the time and knowledge of other persons. But the exception in favor of experts thus contended for, against the general rule relating to witnesses, is not established; and other passages in the same work indicate reasons why, until the legislature make provision for the compensation of experts, the courts must, in a manner that shall be as little oppressive as possible, insist, on proper occasions, upon their attending and testifying as ordinary witnesses. Thus, the author truly says: "As all definite knowledge springs from the possession of facts corroborating previous conjectures, so evidence is the expression of a necessity of the human mind for all such facts as will enable it to form a conclusive judgment. Without evidence, therefore, there can be no knowledge; and, in order to secure it, the law seeks for testimony either through the mouths of living witnesses, the agency of written instruments, material objects and surrounding circumstances, or expressions of opinions predicated upon an acknowledged state of facts." And again, he says, in relation to experts when testifying as witnesses: "They are truly advisers of the court, amici curia, rather than parties interested in the trial." And he adds: "This fact, it is painful to confess, is too much ignored both by counsel as well as courts, and the expert is constantly apt to be treated as an interested party whose every word is tainted with the prejudice of a personal concern in the transaction."

It may, however, be said of other witnesses, also, that, in theory, they are disinterested and amici curiæ. All witnesses should be so, whether testifying to the facts of a transaction that happened under their own observation, or to those natural laws and effects which are learned only by experiment and study. And we may add that a cross-examination of those of the latter class must be allowed, as well as of those of the former, in order that it may be ascertained, so far as by such means it may be, whether they do, indeed, so well and accurately know the matters and things about which they testify, and are so free from bias and partisanship towards the individuals

concerned, or conflicting schools or theories, as to be wholly trustworthy witnesses. For, in fact, they all are witnesses at last. And the same principle which justifies the bringing of the mechanic from his work-shop, the merchant from his storehouses, the broker from 'change, or the lawyer from his engagements, to testify in regard to some matter which he has learned in the exercise of his art or profession, authorizes the summoning of a physician, or surgeon, or skilled apothecary, to testify of a like matter, when relevant to a cause pending for determination in a judicial tribunal. And if, in a prosecution of an individual for murder, it was proved that his supposed victim had, a short time before his death, drank something which he had received from the accused and a chemist had analyzed the liquid, and testified what substance it contained, and a physician was summoned to prove what effect they would have when taken into the stomach of a living man, and what would be the symptoms of such effect, no court would be excusable in exonerating the physician from giving such evdence, solely on the ground that it would be a professional opinion for which he had not been paid or received a promise of payment. testifying he would not be practising the healing art; he would, like the merchant, or the lawyer, or the mechanic, before referred to, be deposing only to things which he had learned in the course of his occupation or profession, or of the preparation for it, and the disclosure of which, to the court would conduce to a correct understanding of a cause before it. His testimony would concern the administration of justice. And of him, as the other witnesses, it could be justly "claimed by the public, as a tax paid by him to that system of laws which protects his rights as well as others." The decisions of courts concern the property, reputation, liberty or lives of men, and are carried into execution as the judgments of the law. Every individual, high or low, is subject to them. It is, therefore, of vital public interest that the tribunals which pronounce these judgments shall have power to coerce the production of any relevant evidence existing within the sphere of their jurisdiction, requisite to prevent them from falling

into error,

In so

Nothing we have said is intended to support the proposition, that a physician or surgeon could be punished as for a contempt for refusing, unless paid therefor, to make a post mortem examination, or undertake any other operation, requiring skill and professional training, in order to qualify himself, when desired by the court so to do, to testify in a cause. This question is not before us. And it is not probable that such a case will ever arise between judges of this state and a profession so distinguished as that to which petitioner belongs, by liberal culture and a high sense of honor and duty. The case of Gaston v. Marion County, 3 Ind. Rep. 497, where it was held that the county would be liable for such a service performed in Indiana at the request of a coroner there, touches that question-but none involved in this cause.

We infer, from circumstances disclosed by this

record, though it does not so expressly appear, that this was designed by petitioner to be a test case merely, on this subject. After a small fine imposed upon him by the court, for refusing obedience to its requirements to testify, he did give his testimony, and the motion to set aside the fine afterwards, and refusal of the court to do so, were probably intended to present a case to be decided here.

We find no error in the judgment of the court below, and it is, therefore, affirmed.

BOOK NOTICES.

A NEW DIGEST OF THE DECISIONS OF THE COURT OF APPEALS OF KENTUCKY, embracing all the reported cases from the organization of the Court in 1792 to 1876. By HON. RICHARD A. STANTON, late Judge of the Fourteenth Judicial District; author of "Treatise for Justices," etc. 2 vols. Royal 8vo.

The two volumes of this Digest contain 1,424 pages, and include all the reported cases of the court of last resort in this state; a table of all the overruled, disapproved and doubtful cases, and a reference to all the statutes which have been construed or declared unconstitutional, are given under their appropriate titles. At the end of the work is given a complete table of all the cases digested in the two volumes, with references to the pages of the books from which they have been taken, as well as to the pages of the Digest on which the abstracts appear. It is in all respects an excellent digest, and the author is entitled to the thanks of the profession, both in and outside his own state, for the labor which he has given to its preparation. A few states only have really good digests, and we have no hestitation in saying that this is on a par with the best of them. The printing and binding of the work reflect great credit on the publishers.

Of the merits of this work of Sir James F. Stephen, we have already expressed an opinion. 3 Cent. L. J. 519. Probably no law book which has been issued during the past two years has met with so large a sale, both in England and in this country as the English edition of this book and its American reprint. The American edition to which we refer was an exact reprint of the author's digest, and was published in a pocket form. In that shape, it was a novelty in law book-making and was much sought after by the busy lawyer, containing as it did the principles of the law of evidence in a nut shell. In this edition this popular feature is gone, and we are given instead a volume not a great deal smaller than the ordinary law book. We are decidedly of the opinion that the great merit of this digest is lost by its being subjected to the treatment which all English treatises on the law are subjected to in this country, that is to say, by its size being swelled by American notes. The present edition is both too large and too small. It is too large to be handy and too small to be useful. It must now stand on the shelf instead of being carried in the pocket, and at the same time is a very incomplete digest of the law of evidence as announced by our courts. The American notes are scattering and unsatisfactory, and we can not help thinking that the opinion of the profession will be that a useful book has been spoiled by being too much edited.

INDICTMENT.-FALSE PRETENSES.-An indictment which sets out several, "false pretenses," is not bad, because one of the alleged false pretenses refers to a future occurrence. Proof of one such pretense is sufficient to sustain a conviction. Opinion by NORTON, J.— State v. Voback.

CRIMINAL PRACTICE.-On an indictment under sec. 25, 1 Wag. 456, an instruction based on section 45, 1 W. S. 460, is erroneous, and for giving it the judgment must be reversed. If it was intended to hold defendant under section 45, an indictment should have been found on that section. Opinion by NORTON, J.-State v. Arbo.

CRIMINAL PRACTICE.-CONTINUANCE.-On a second application for a continuance, the affidavit must show an honest effort to get ready for trial, and due diligence, and must comply with the statute. An application for a change of venue in a criminal case, must be made in full compliance with statutory provisions. Opinion by NORTON, J.-State v. Lowther.

CRIMINAL PRACTICE,-On an indictment under sec. 27, 1 W. S. 480, it is not necessary to set forth the particular felony for which the prisoners were confined, whom it is alleged the defendant was aiding to escape. State v. Presbury, 13 Mo. 342; State v. Fulton, 19 Mo. 680. Opinion by NORTON, J.-State v. Addcook.

CONSTITUTIONAL LAW.-The act of the legislature prohibiting the conveying of fire-ar s into courts, churches, etc., (Laws of Missouri, 1874, p. 43), is constitutional. It is a police regulation not in conflict with the provisions of the organic law. 1 Kelly, Ga. 243; 13 La. Ann., 399; 31 Ala. 387; 4 Ark. 18; 3 Heisk. 165; 3 Blachford, 229; 24 Texas, 384. Opinion by NORTON, J.-State v. Reando.

ACCOUNT STATED.-An "account stated," is a demand on one side, which is admitted on the other for a definite amount due; and the admission must be voluntary, but need not be in express terms. 2 Green. Ev., §§ 126, 127; Cape Girardeau and State Line R. R. Co. v. Kimmel, 58 Mo. 84; 1 Story Eq. Jur., § 526; Lockwood v. Thorne, 1 Ker., 170; Merry v. Toland, 3 John. Chy., 569; Wilde v. Jenkins, 4 Paige, 481; Philips v. Belden, 2 Ed. Chy. 1. Opinion by NORTON. J.-Powell et al. v. Pac. R. R.

INDICTMENT. -PERJURY.-Where an attempt is made to convict one for perjury committed before a grand jury, the indictment must aver that the persons before whom the offence was committed were a grand jury, etc., and this allegation must be correct and positive, not argumentative. Where the "material matter" alleged is an enquiry whether a certain person had committed a misdemeanor within 12 months before December, 1874, and it appears that the grand jury referred to was organized in December, 1873, the indictment is bad for repugnancy. Opinion by NORTON, J. -State v. Hambleton.

a wider scope is given to the proof of them, the judgment must be reversed. 1 Green. Ev., § 156; Leiber v. Commonwealth, 9 Bush. 11; State v. Moses, 35 Ala. 421; Johnson v. State, 17 Ala. 618; Ben v. State, 37 Ala. 103; State v. Shelton, 2 Jones (N. C.) 360 ;Nelson v. State, 7 Humph. 542, Hackett v. The People, 54 Barb. 370. Opinion by NORTON, J.-State v. Draper.

MASTER AND SERVANT-INJURY TO SERVANT BY INCOMPETENCE OF FELLOW-SERVANT-INSUFFICIENCY OF THE NUMBER OF SERVANTS EMPLOYED, AND THE USE OF DANGEROUS MACHINERY.-DEMURRER TO EVIDENCE.-Where an instruction in the nature of a demurrer to plaintiff's evidence is asked at the close of plaintiff's case, the questions presented by the record to this court are, 1st, whether the petition states a cause of action, and, 2nd, whether there is any evidence to support the cause of action stated. Where a servant of a railroad company had his foot and leg mashed, and the petition and proofs showed that the injury was occasioned by the foot being caught in a "spring-frog," and that this contrivance is more dangerous than the ordinary frog in switching; and, also, that four men were ordinarily employed in making up a train, but that at the time of the injury only two were employed, the yard-master being absent, and one of the train-men sick, and, also, that the conductor, who operated the locomotive in making up trains, was intemperate, had been suspended for intoxication by the company, and had been drinking on the morning that the injury occurred, this was a good cause of action stated, and proof enough, at least, to submit the case to the jury; and there being a verdict for plaintiff, the same is affirmed. Harper v. Ind. & St. L. R. R., 47 Mo. 579; McKeon v. Cit. R. R., 43 Mo .406; Conroy v. Vulcan Iron Works, 62 Mo. 39; Keegan v. Kavanaugh, 62 Mo. 232; 61 Mo. 591. Opinion by HENRY, J.-Stoddard v. St. L., K. C. & N. R. R.

IMPERFECT RECORD.-PRACTICE.-1. Where H. was declared elected to the office of county commissioner for one of the districts of Cherokee county, and C. contested his election before a court of contest of that county, and on the trial thereof, the court of contest decided in favor of C. the contestant, and against H. the contestee, and afterwards H. attempted to have the proceedings of the court reviewed by proceedings in error, in the district court of said county, and after the district court affirmed the judgment of the court of contest, H. brings the case to the Supreme Court on error, to reverse the action of the district court, but fails to show by the record that any petition in error was filed in the district court, and there is nothing in the record to inform this court upon what assignments of error, if any, the district court acted, held, that the Supreme Court can not adjudge that the district court committed error in the case, and of necessity the judgment of the district court must be affirmed. Affirmed. Opinion by HORTON, C. J. All the justices concurriug.-Hubbard v. Coban.

CLAIMS AGAINST ESTATES OF DECEDENTS-PowERS OF ADMINISTRATOR-1. The exhibition of a claim to an administrator of an estate, under section 814 of the act concerning executors and administrators (Gen. Stat. p. 449), does not suspend or affect the running of the statute of limitations, 2. Section 106 of said act limits the time in which a suit may be brought to establish a claim either in the probate or district courts.

3. A promise to pay a debt upon certain conditions can not be invoked to avoid the statutes of limitations, unless the conditions are complied with. 4. A mere reference to the indebtedness, although consistent with its validity and implying no disposition to question such validity or a mere suggestion of some action concerning it, is not such acknowledgment as is contemplated in section 24 of the code of civil proceedure (Gen. Stat. p. 635), as sufficient to suspend the running of the statute of limitations. There must be an unqualified and direct admission of a present subsisting debt on which the party is liable, and which he is willing to pay. 5. An administrator has no power by promise or acknowledgment to revive against an estate a claim once barred by the statute of limitations. Affirmed Opinion by BREWER, J. All the justices concurring.--Hanson v. Fowle.

WAIVER OF A PRELIMINARY EXAMINATION IN A CRIMINAL CASE-CONVICTION FOR ESCAPE.-The defendant being imprisoned in the county jail on the charge of burglary, and awaiting his trial on such charge, made an escape. Afterwards he was arrested on a warrant for such escape and handcuffed and taken before the magistrate and the sheriff, where, in the presence of such magistrate and the sheriff, the county attorney and the police officer, and being handcuffed, he waived a preliminary examination, and was returned to the jail. Afterwards he was tried and acquitted on the charge of burglary. Afterwards the county attorney filed an information against him charging him with committing said escape. He filed a plea in abatement, claiming that his said waiver of said preliminary examination was a nullity, and therefore that the county attorney had no power to file such information. He also filed a plea in bar claiming that as he had been tried and acquitted on the charge of burglary, he could not be tried or convicted on the charge of committing said escape. The county attorney demurred to both of these pleas, and the court below sustained both of said demurrers. Held, that the court below by so doing did not commit any error. Opinion by VALENTINE, J. Affirmed. All the justices concurring.-State v. Lewis.

ASSAULT AND BATTERY-FEME COVERT — EVIDENCE.-1. In an action to recover damages for an assault and battery, brought by a married woman in her own name, where the petition does not disclose the fact that she is married, but states among other things that she was prevented from performing her necessary work from the result of the injuries, that she was compelled to pay $25.00 for medical treatment to cure the hurts and bruises, and the defendant files as an answer to the petition, that at and before the filing of the petition the plaintiff was a married woman and is still a married woman; held, that it was not error for the district court to strike out the defense as irrelevant and immaterial on motion of plaintiff. 2. In an action to recover damages resulting from assault and battery, the plaintiff although not an expert, is permitted to testify concerning her bodily health, before and after the assault. 3. Where evidence is erroneously received and the court thereafter charges the jury to disregard such objectionable testimony; held, that the admission of the testimony is not necessarily a sufficient cause for the reversal of the judgment. 4. In an action to recover damages for an assault and battery, where the evidence tended to prove that the defendant, while on horse-back, attempted to ride down a woman standing in a field, and was only prevented from so doing by the woman catching the bridle of the horse as the animal was coming against her; held, not error to instruct the jury that if the defendant rode or drove a horse toward the plaintiff in a threatening manner with intent to injure the plaintiff within such a distance as harm might have ensued to the plaintiff, if

the defendant had not been stopped by the plaintiff, they must find a verdict in her favor. Affirmed. Opinion by HORTON, C. J. All the justices concurring.— Townsdin v. Nutt.

REPLEVIN JURISDICTION-MARRIED WOMEN.-1. Where a defendant in a replevin action pending before a justice of the peace for the recovery of $10 appears on the return day of the summons served upon him in the case and obtains an adjournment of the trial to a future time on his application, and on the trial thereafter before such justice judgment is rendered against the defendant in said action, and such defendant takes the case on appeal to the district court, and after the case has been duly docketed there for trial: Held, That the district court committed no error in overruling a motion made by such defendant to dismiss the action, on the ground that the justice before whom the case was tried had no jurisdiction for want of a sufficient replevin bond and affidavit being filed with him at the institution of the suit. 2. Under our statutes a married woman, who purchased personal property from her husband, or other person, in good faith, and for a good and sufficient consideration, is the owner of the property, and may maintain in her own name an action of replevin thereof against an officer, who levies on the same under an execution to satisfy her husband's debt. Going v. Orns. 8 Kan. 85. 3. Where a constable of a township, under an execution against the property of A., levies upon and seizes the property of B., and takes the same into his possession without the authority or knowledge of B., and asserts a claim to the property by virtue of the process in his hands inconsistent with the owner's right of property and right of possession: Held, That B. can commence an action of replevin for the recovery of the same without making any demand of the officer therefor. Opinion by HORTON, C. J. Affirmed. All the justices concurring. Dickinson v. Casey.

CONDITION SUBSEQUENT IN DEED. Only the grantor or his heirs can take advantage of the forfeiture of a condition subsequent in a deed. Conditions subsequent are not favored in law and are construed strictly against the grantor and heirs because they tend to destroy estates, 20 Ind. 398. To enable the grantor or his heirs to recover back land because of the forfeiture of a condition subsequent, an entry upon, or claim to the land must be made before the commencement of the action, 45 Ind. 352. Under our system of jurisprudence, a demand of possession is equivalent to an entry upon the premises. Opinion by NIBLACK, J.— Clark et al v. Holton.

RIGHTS AND DUTIES OF TELEGRAPH COMPANIES.A telegraph company is not a censor of public or private morals, or a judge of the good or bad faith of any party seeking to send a dispatch over its lines. If the message offered for transmission is expressed in decent language, on payment or tender of the usual charge, the duty of the telegraph company is fixed by law, and it has no discretion. It can not refuse to transmit such a message an the ground that it was not sent in good faith, or that the parties were of loose morals and in bad repute, and that the company believed the purpose of the message to be immoral and unlawful. Opinion by Howк, J.-W. U. Telegraph Co. v. Ferguson. ·