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This proposition as we have before shown is not the contract, the discharge will be valid when it is the definitely settled by any authoritative decision of the intention of the parties to the contract, no matter Federal Supreme Court. It is sustained however by wbere executed, that the same shall be governed by the reasoning and tbe dicta of the judges in several the laws of the State in which the discharge is granted, cases in that court, and it has been held to be the law although both parties were non-residents at the time in most of the States. However, being a question of entering into the contract, provided the creditor be under the Constitution it cannot be said to have been a resident of that State at the time of the institution finally determined so as to preclude further argument of the bankrupt proceedings. until the United States Supreme Court has decisively Second, the discharge will be invalid when the passed upon it.
creditor was not a resident of the State at the time of Fifth, where the contract is not made in the State the institution of the proceedings, even though the in which the discharge is granted and is not made contract was made with reference to the laws of that payable therein so as to be governed by the laws State, and both parties were residents thereof at that thereof, a discharge under the insolvent laws of such time. State is no bar to an action on the contract even though Third, the discharge is invalid where the contract the insolvent law was in force at the time of the execu- was made with reference to the laws of some other tion of the contract. Cook v. Moffat, 5 How. 295; State, although both parties were residents of the McMillan v. McNeil, 4 Wheat. 209.
State in which the discharge was obtained both at the This rests upon the obvious ground that the con- time of making the contract and at the time of the tract never having been governed by the law of the inception of the insolvency proceedings. State in which the discharge was granted, the insol- Other suppositive cases might be stated, but they vent law never formed a part of the contract even are all governed by the same principles which control though in force before the contract was executed, and those already stated. therefore a discharge thereunder would impair the
Guy C. H. CORLISS. obligation of the contract.
ST. PAUL, MINN. Sixth, where the creditor was not at the time of the inception of the insolvency proceedings a citizen of the State wherein the discharge was granted, he is not
STATUTE OF LIMITATIONS AS TO NON-RESI. bound by the discharge, even though the contract was
DENTS. made in that State, provided the creditor did not voluntarily become in any manner a party to the pro- MAINE SUPREME JUDICIAL COURT, SEPTEMBER 13,1883. ceedings. Baldwin v. Hale, 1 Wall. 223, overruling Scribner v. Fisher, 2 Gray, 43; Kelley v. Drury, 9 Allen,
THOMPSON V. REED. * 27. Seventh, where the creditor accepts a dividend or
The Statute of Limitations is no bar to an action brought in
this State on a promissory note made and payable in New in any other manner becomes a party to the proceed
York, although the parties continued to reside there until ings, he is bound by the discharge, even though a non- any action thereon was barred by the statute of that State, resident. Clay v. Smith, 3 Pet. 411; Soule v. Chase, 39 when it does not appear that the payer has not resided in N. Y. 341.
this State six years since the note became due. Eighth, this is the rule, even where the discharge is
Nor is it material that the maker of the note had attachable granted by a foreign government. Matter of Coates, 3
property in this State for eleven months after the note Abb. App. Dec. 231.
was payable. Ninth, the proceedings do not bind citizens of an- N other State who have not voluntarily appeared and by the defendant to the plaintiffs, March 31, 1866, waired their rights. Boyle y. Zacharie, 6 Pet. and on an account for money loaned at New York in 635; Suydam v. Broadnax, 14 id. 75; Cook v. the summer of 1866. The plea was the general issue Moffatt, 5 How. 295; Baldwin v. Hale, 1 Wall. and Statute of Limitatious. At the trial the defend233; Baldwin v. Bank of Newburg, id. 234, note; Gil- ant consented to be defaulted in the sum of $1,187.11, man v. Lockwood, 4 id. 409; Bedell v. Scruton, 54 Vt. with leave to report the case to the full court, who 494, and cases cited in note to $ 525 of Wharton on were to determine from the evidence introduced aud Conflict of Laws.
offered whether the action is barred. ff barred the Tenth, they do not bind him, even when he seeks to default is to be taken off and plaintiffs nonsuited, enforce his claim in the very court which granted the otherwise judgment on the default. discharge. Donnelly v. Corbett, 7 N. Y. 500; Soule v.
The material facts are stated in the opinion.
William L. Putnam and Joseph M. Trott, for plainterned by the laws of that State. Pratt v. Chase, 44 N.
iff. Y. 597; Von Glahn v. Varrenne, 1 Dill. 515; Baldwin C. W. Larrabee, for defendant. v. Hale, 1 Wall. 223: Kelley v. Drury, 9 Allen, 27. Twelfth, it is not necessary that the creditor should
VIRGIN, J. The Statute of Limitation is no bar to be a citizen of the State. The discharge will bind him,
an action brought in this State on a promissory note
made and payable in another State, although the even though he be an alien resident of the State at the time of the inception of the insolvency proceedings.
parties continued to reside there until any action Von Glahn v. Varrenne, 1 Dill. 515.
thereon was barred by the statute of that State. The proceedings being regular and otherwise valid,
It is the universally acknowledged rule of law that only two questions can arise in determining the
contracts are to be construed according to the law of validity of an insolvent discharge. First, does the act
the place where they are made and to be performed, under which the discharge was obtained impair the
but that they are to be euforced according to the lex obligation of a contract. Second, had the court juris- fori. And it is now well settled by the great current diction? Whenever the first question must be an
of authority that as the Statute of Limitations operates swered in the affirmative, or the second in the uega
merely upon the remedy, it is consequently local in its tire, the discharge is void. The following rules, not as
operation, and the law of the place where the remedy yet established by the courts, may therefore be re
is sought, and not that of the situs of the contract, garded as sound:
must control. Leroy v. Crowninshield, 2 Mason, 151; First, the law being in force at the time of making
*To appear in 75 Maine Reports.
Tribodeau v. Lavasseur, 36 Me. 362; Townsend v. Jami- unjust that the latter should be barred of his action son, 9 How. 407; Brown v. Nourse, 55 Me. 230. Some and lose his debt, by reason of a fact, which was not, of the States have statutory provisions allowing the and in the common course of business could not be interposition of the statute bar of another State known to him. It is accordingly proposed in this secwhere the defendant had resided for the requisite tion to omit this qualification of the rule as to absent period. Thus Massachusetts, in 1880, enacted a stat- defendants." Com. Rep.. Part III, 275. And the ute providing in substance that no action shall be Legislature followed the recommendation of the combrought by any person whose cause of action has been missioners, Massachusetts Rev. Stat. (1836), ch. 120, barred by the laws of any State, territory or country 9, which was only four years before our first revision. while he has resided therein. Public Stat., chap. 197,
Defendant defaulted. $ 11. But the statutes of this State contain 'no provision of like character.
The provision of the statute under which the plaint- EFFECT OF WILL AS TO AFTER-ACQUIRED iffs seek to maintain this action is: “If any person is
LANDS. out of the State when a cause of action accrues against him, the action may be commenced within the time NEW JERSEY COURT OF CHANCERY, OCTOBER limited therefor after he comes into the State." Rev.
TERM, 1883. Stat., ch. 81, $ 99. There being no plea to the jurisdiction but a general appearance by the defendant, we
EXECUTOR OF GARDNER V. GARDNER.* assume no question of that kind would arise on the real facts although not disclosed by the case as re
At common law, a will would not pass lands acquired by a
testator subsequent to the date of his will. ported. The case does find that both the plaintiffs and
By statute, lands acquired by a testator after the date of his defendant resided in New York when and where the
will, will pass by his will, provided it contains words sufnote was made and by its terms to be paid, and the ficient to pass them had he owned them when he made account accrued, and continued to reside there until his will. 1875; and that the defendant has resided there ever But after-acquired lands will not pass under a will which desince the dealings between the parties recited by both
clares that the estate given by it consists of personalty note and account. Under these circumstances not
only. withstanding an action on the note and account would N final hearing on bill and answer. be barred in New York, this action is not barred here. Bulger v. Roche, 11 Pick. 36; Putnam v. Dike, 13 Gray,
James B. Vredenburgh, for complainant. 535. Nor does the fact that the defendant had property
M. T. Newbold, for defendants. in this State for eleven months next after the note
VAN FLEET, V. C. The object of the bill in this was given aid the defendant. (1) Because it does not
case is to procure a construction of the will of William appear that the plaintiffs knew the fact or could be
Gardner, deceased. The testator, after making cercharged with knowledge through due diligence.
tain specific bequests, and giving several pecuniary Crosby v. Wyatt, 23 Me. 156, 164; Little v. Blunt, 16
legacies of fixed amount. and directing the payment Pick. 359; and (2) because it is immaterial even if such
of his debts and funeral expenses, directs as follows: fact were known to the plaintiffs.
I give and bequeath all the residue of my estate, Revised Statutes, chap. 81,$ 99, as originally enacted,
which consists of personalty only, to my executor provided that if any person, who at the time a cause of hereinafter named, in trust, to apply the income of action accrued against him, was without the limits of
the sum of two thousand dollars to my late wife's the State, and “did not leave property or estate therein
niece, Adriana Clements, for her own use during her that could by the common and ordinary process of
natural life, or until she shall marry, and from and law be attached," etc., the action may be commenced
after her marriage until her death, to apply the inwithin the time limited therefor after his return.
come of one thousand dollars to her use; and upon the Stat. 1821, chap. 62, $ 9. Much trouble arose in satisfy
further trust, as to the residue of my estate, to apply ing juries of the fact that the creditor knew the
the income of the one equal fifth part thereof to the debtor had attachable property here, or that his prop
use of my daughter, Eleanor Jane, during her natural erty was held in so public a manner as to amount to
life, and at her death the said one-fifth to be divided constructive knowledge, and to raise the presumption
equally among her issue." that if tbe creditor had used ordinary diligence the
The other four-fifths were directed to be held and debtor's property might have been attached. Litlle v.
disposed of substantially in the same manner. The Blunt, 16 Pick. 369, 365. And the property clause was
testator, at the date of his will, owned no lauds, but repealed and omitted from the revision of 1840. Rev.
held mortgages on real estate to the amount of $3,500. Stat. (1840), cbap. 146, $ 28; Crehore v. Mason, 23 Me.
He subsequently, in August, 1876, made a further loan 413.
of $1,500 to the mortgagor, and took a single mortgage That the property clause was intentionally omitted
on the same premises for the whole $5,000, but refrom the revision of 1840 is evident from a like change
tained, uncanceled, the prior mortgages. This last of the statute of Massachusetts. We derived our
mortgage was afterward foreclosed and the mortgaged statutes in the early history of the State from the
premises sold at judicial sale to the testator. He acmother Commonwealth. Our statute of 1821 above
quired title April 4, 1878. His will bears date May 21, cited was a substantial rescript of the statute of 1786,
1875, and he died May 19, 1879. The question the comchap. 52, which continued in force until 1836, when the
plainant asks to have decided is, whether the lands first revision of the Massachusetts statutes was made.
thus acquired by the testator passed by his will. The revision commissioners, after citing the section
At common law, a devise of land was held to be in under examination, say: “If the creditor knows of
the nature of a conveyance, and to pass nothing the the existence of such property, it not to be supposed
testator did not own at the date of his will. Land acthat he will neglect to take it, and prefer to rely on an
quired after the date of the will did not pass. 1 Jarm. action against the debtor if he shall happen to come
on Wills ( R. & T. ed.), 155; Bruen v. Bragaw, 3 Gr. into the State; and this provision in that case would
Ch. 261. This rule has however been changed by statbe useless. If on the other hand, the debtor should
ute. A statute passed in 1851 declares that real estate leave property so situated, whether by design or accident, that it is not known to the creditor, it would be *To appear in 10 Stewart's (37 N. J. Eq.) Reports.
acquired by a testator after making his will shall pass “The real and personal estate whereof I am in anyby any general or special devise, or sale under any wise seised or otherwise possessed, either in possespower of sale contained in the will sufficient to include sion or reversion, which I have any power to dispose it, had the same been acquired before the making of of,” Roney v, Stiltz, 5 Whart. 381. the will, unless a contrary intention be manifest on A testator, possessed of only personalty, gave wall the face of the will. Rev., p. 1248. $ 24. But for the tbe rest, residue and remainder of my goods, chattels, statute, it is clear the lands in question would not stock in trade, estate and effects of what nature or bave passed. But the statute says, though acquired kind soever," O'Toole v. Browne, 3 E. & B. 572. after the making of the will, they shall pass under the One having only the possession of lands in B., and will if the will contains words which would have owning neither lands nor personalty, gave H. the land passed them had they been owned by the testator at whereon his (testator's) father lived, and the lands in the date of his will. Now it is obvious this will con
B. and ten slaves, Turpin v. Turpin, Wythe (Va.) 137; tains no such words.
see also Miller's Estate, 48 Cal. 165; Smyth v. Smyth, If the testator had owned these lands at the date of
L. R. (8 Ch. Div.), 561; Harper v. Blean, 3 Watts, 471; his will, there can be no doubt, I think, that they | 1 Jarm. on Wills (R. & T. ed.), 604. would not have passed, for he says, very plainly, that WHEN AFTER-ACQUIRED LANDS DO NOT Pass.-A the property on which this clause of his will shall oper- devise of "all the real and personal estate I now pogate “consists of personalty only." Real estate is dis
Aess," Quinn v. Hardenbrook, 54 N. Y. 83; see Cole v. tinctly excluded by his statement that the residuary
Scott, 1 Macn. & G. 518; Brewster v. McCall, 15 Conn. estate which he gives to his executor "consists of personalty only." To hold that the will passed real es.
274; Hutchinson v. Barrow, 6 H. & N. 583. tate, in spite of so plain a declaration of his intention,
A general charge on testator's “estate," Warner v. would be giving effect to the will coutrary to the in- Swearingen, 6 Dapa, 195. tention of the testator manifest on the face of his “Such worldly estate it bath pleased the will. If we say the words “which consists of person- Almighty to bless me with,” Marshall v. Porter, 10 B. alty only" were used by the testator simply to de
Mon. 1. scribe the nature or character of his property at the
After authority to dispose of property to pay his date of his will, and not to indicate the property which it should pass, we do not advance a single step toward
debts, a contingent gift of “the whole of my propthe construction contended for by the complainant,
erty,” Smith v. Edrington, 8 Cranch, 66. for before we can say that the will passed the lands, it
After disposing of various articles of personal propis indispensable, according to the statute, that we erty, "should my executor find other property belongshould find words in the will sufficient to include the ing to me not herein anywise disposed of," Newell v. lands. That cannot be done where the words of the Toles, 17 Hun, 76. will plainly say that the property given “consists of
A testator gave to his sister a tract of forty acres, all personalty only."
the land he then owned, and gave to his mother “all My judgment is that the testator died intestate as to the lands in question. This construction, I think
my other property, consisting of horses, cattle, hogs, it is quite probable, does not give effect to the testa
money and effects whatsoever," Smith v. Hutchinson, tor's latest intentions, but the court, in endeavoring to
61 Mo. 83. find out what disposition the testator intended to "All my real estate situated in S., also all the resimake of his property by will, can look at nothing but due of my personal estate and posessions of whatever his written words, and whatever he has said in writ- kind or name," Blaisdell v. Hight, 69 Me. 306. ing, in conformity to the requirements of the statute,
“The balance of my estate remaining in Carolina to must be declared to be his last and only will. The law
be collected and sold and equally divided among my gives effect to no other.
lawful heirs," Meador v. Sorsby, 2 Ala. 712; see Jepson NOTE.-General expressions in a residuary clause
v. Key, 2 H. & C. 873; Miles v. Miles, L. R., 1 Eq. 462; that will pass testator's personal property acquired
Cox v. Bennett, L. R., 6 Eq. 422. after executing his will, do not pass after-acquired
Where a testator devised all the remainder of his lands, Loveren v. Lamprey, 22 N. H. 434, 442 and cases cited ; Sharpe v. Allen, 5 Lea, 81; Girard v.Philadelphia,
real estate, and then enumerated the lands comprised 4 Hawle, 323; Lyndes v. Townsend, 33 N. Y. 558; see in such remainder, Crombie v. Cooper, 22 Grant's Ch. Ferry v. High, 3 Head, 349; Russell v. Chell, L. R., 19 267 ; 24 id. 470. Ch. Div. 432; Dunlap v. Dunlap, 74 Me. 402; Douglass Whether a gift of a mortgage will pass the land v. Douglas, Kay, 400; Tolar v. Tolar (3 Hawks, 74), 14
covered thereby, which land was afterward acquired Am. Dec. 576, note.
by testator, Van Wagenen v. Brown, 2 Dutch. 196; WHEN AFTER-ACQUIRED LANDS DO Pass.-Under a a devise of the proceeds of lands directed to be sold by
Ballard v. Carter, 5 Pick. 112; Brigham v. Winchester, executors, Byrnes v. Baer, 86 N. Y. 210.
1 Meto. (Mass.) 390; Martin v. Smith, 124 Mass. 111; Where a testatrix, who at the time owned no real Woods v. Moor, 4 Sandf. 579; Pruden v. Pruden, 14 estate, made her will disposing of “all my property," Ohio St. 253; Yardley v. Holland,, L. R., 20 Eq. 428; Cushing v. Ayhvin, 12 Metc. 169.
see Lanning v. Cole, 2 Hal. Ch. 102; Scaife v. Thomp"All the balance of my property and effects," Hen
son, 15; 8. C., 337; Warren v. Taylor, 56 Iowa, 182; derson v. Ryan, 27 Tex. 670. After a general bequest of personal property, "all
Napton v. Leaton, 71 Mo. 358; Leeds v. Munday, 3 Ves. my real estate now possessed by me," Lent v. Lent, 24 348; Hancock v. Hancock, 22 N. Y. 568; Humphreys v. Hun, 436.
Humphreys, 2 Cox, 184. "All that dwelling wherein D. now resides," Mid- How far a devise executed before the statute, authorland R. Co. v. Otley Branch, 34 Beav. 525.
izing after-acquired lands to pass, is controlled by a "All that part of a certain farm which I now own,
codicil executed after that enactment, York v. Wallying east of the road, etc.,' " Garrison v. Garrison, 5 Dutch. 153; see Emuss v. Smith, 2 De G. & Sm. 322;
ker, 12 M. & W. 591; Emuss v. Smith, 2 De G. & Sm. Castle v. Fox, L. R., 11 Eq. 542; Smith v. Puryear, 3
722; Jones v. Shewmaker, 35 Ga. 151; Smith v. Puryear, Heisk. 706.
3 Heisk. 706.-JOHN H. STEWART, REP.
COMPROMISE OF ACTION BY ATTORNEY- the defendant in error, which is the suit now before CHAMPERTY-DEATH DOES NOT RE- us, there was a reply to the answer, alleging that VOKE POWER COUPLED WITH
under the policy the misstatement was not a breach INTEREST
of a warranty, and that the statement was the repres
entation of the agent of the company, and not that of SUPREME COURT OF THE UNITED STATES,
the assured. In January, 1873, Charles W. Jeffries FEBRUARY 4, 1884.
died, and the plaintiff in error, Cuthbert S. Jeffries, was appointed in his place administrator of Kennedy,
and was substituted as plaintiff in this suit in March, JEFFRIES V. MUTUAL LIFE INSURANCE CO. OF NEW
1873. In November, 1873, while the suit against the YORK.
Economical Company was pending in this court, this K. died in Missouri, in 1871, having a policy of insurance on suit was tried in the Circuit Court before the court
his life. J. was appointed there his administrator. L. without a jury. That court rendered a judgment for and T., copartners as attorneys-at-law, brought a suit on
the plaintiff. The defendant brought the case to this the policy, in which, after a long litigation, there was a judgment for the plaintiff for $13,495,"in 1877, in a Circuit
court by a writ of error, and at October Term, 1875, Court of the United States. J. had died in 1873, and C.
the judgment was reversed, on the authority of the had been appointed administrator in his place, and sub
case in 22 Wall. and a new trial was awarded. In stituted as plaintiff. The case was brought into this April, 1877, the case was again tried, and before a jury, court, by the defendant, by a writ of error. Before it was which found a verdict for the plaintiff, but the Circuit heard here L. compromised the judgment with the de- Court set it aside. The case was tried again before a fendant, in 1879, receiving in full $9,401.42, and entered
jury, in October, 1877, and a verdict was rendered for satisfaction of the judgment on the record. C. then
the plaintiff, on which a judgment in his favor was moved the Circuit Court to vacate the satisfaction, on the
entered, October 9, 1877, for $13,495. On the 27th of groupds that L, had no authority to enter it, and had been notified by C., after the compromise had been made
October, 1877, the defendant sued out a writ of error - and before the satisfaction had been entered, that he
returnable to this court at October Term, 1878. The would not ratify the compromise, and that the compro
case was docketed here, and the appearance of Joseph mise was unlawful because not authorized by the Pro- S. Laurie was entered for the defendant in error, the bate Court. The Circuit Court heard the motion on affi. present plaintiff in error, and that of 0. H. Palmer for davits, and found as a fact, that J., while administrator, the plaintiff in error, the present defendant in error. entered into a contract with L. and T., whereby they In February, 1879, Mr. Laurie compromised the judgagreed to prosecute the claim for a portion of the proceeds, with full power to compromise it as they should
ment with the Mutual Company. Interest at six per please, and that the claim was a doubtful one, and held
cent was computed ou the judgment from its entry to that the compromise was rightly made, and that the November 22, 1878, and added, and an abatement of plaintiff was bound by the contract of J., and denied the $5,000 was then made, and the remainder, $9,401.42, motion. On a writ of error by the plaintiff, Held:
was paid by the company to Mr. Laurie. He surren(1) This court cannot review such finding of fact, there be- dered the policy to the company, a stipulation signed ing evidence on both sides, and the error, if any, not be
by Mr. Laurie and by Mr. Palmer, agreeing that the ing an error of law;
suit might be dismissed from the dooket of this court (2) The contract made was not champertous or unlawful, and J. had authority to make it;
without costs to either party as against the other, was (3) The contract having given to L. and T. a power coupled
presented to this court and filed, and on the 11th of with an interest, the death of J. did not impair the au- March, 1879, an order was made by this court dismiss. thority to compromise, and C. was bound by it;
ing the writ of error, each party to pay his own costs. (4) L., having continued to be a copartner with T., so far as On the 15th of December, 1879, Mr. Laurie, as attor
this case was concerned, had authority to make the com- ney for the plaintiff, entered satisfaction of the judgpromise without the co-operation or consent of T.
ment on the margin of the record of the judgment, in N error to the Circuit Court of the United States the law record book in the office of the clerk of the
for the Eastern District of Missouri. The vpin- Circuit Court, in the presence of the deputy clerk, who ion states the case.
signed the entry as a witness, the entry being as folBLATCHFORD, J. On the 19th of August, 1871, one lows: “I hereby enter satisfaction of this judgment Allan A. Kennedy died in Franklin county, Missouri, in full, this 15th day of December, 1879. C. S. Jeffries, having two policies of insurance on his life, one in the administrator, etc., by Joseph S. Laurie, his attor. Economical Life Insurance Company, of Providence, ney." The plaintiff immediately filed a motion in the R. I., for $5,000, and the other in the Mutual Life In- Circuit Court to vacate the entry of satisfaction, alsurance Company, of New York, the defendant in leging as grounds therefor that the entry was made by error, for $10,000. Charles W. Jeffries was appointed Laurie without authority from the plaintiff, and in administrator of Kennedy, by the Probate Court of
fraud of his rights, and without consulting him, and Franklin county. At that time Joseph S. Laurie and after Laurie had been notified that the plaintiff would Thomas W. B. Crews were attorneys-at-law, and co- not ratify the said compromise; that the plaintif had partners as such, in St. Louis, Missouri. The poli- learned only a few days previously of the dismissal of cies were put into their hands for suit, and they
the writ of error in March, 1879, and of the comprobrought a suit on each in the name of Jeffries, as
mise made by Laurie, and had at ouce notified Laurie plaintiff, in the State court of Missouri. The suits and the defendant that the compromise was made were both of them removed into the Circuit Court of without authority from him and he would not ratify the United States for the Eastern District of Mis- it; and that he could not authorize a compromise withsouri. In each suit an answer was put in setting up a
out the order of the Probate Court of Franklin county breach of a warranty by the assured, in that in the
which order had not been made. The motion was application for the insurance he stated that he was a supported and opposed by affidavits, the defendant apsingle man when he was a married man. In the suit pearing by counsel. The court, as appears from its against the Economical Company there was a de
opinion, which is set forth in the record, found as a murrer to the answer, on the ground that the answer fact, from the evidence before it, which evidence is failed to allege that the misstatement was material to
before us, that Charles W. Jeffries, while administrathe risk. The demurrer was overruled by the Circuit
tor, entered into a contract with Mr. Laurie and Mr. Court and a judgment was entered for the defendant. Crews, whereby they agreed to prosecute the claim On a writ of error, this court affirmed the judgment, for a portion of the proceeds, with full power to com at October Term, 1874, 22 Wall. 47. In the suit against | promise it as they should please, and that the claim
was a doubtful one. On the ground of such express
tion. This transaction occurred before such enactauthority and of the doubtfulness of the claim the ment. An administrator has general power to dispose court held that the compromise was rightly made, of the personal effects of his intestate (2 Williams on notwithstanding the judgment. It also held that the Exrs. [6th Am. ed.], p. 998), and to compound a debt, plaintiff was bound by the contract made by his pre
it it is for the benefit of the trust estate. 3 id., p. 1900, decessor. An order was made overruling the motion, and note ga. And even when statutes exist providing and afterward a motion for a rehearing, founded on for compromises with debtors with the approral of a further affidavits, was denied. A bill of exceptions Probate Court, it is held that the right to compromise setting forth all the papers used on both motions, and which before existed is not taken away, but may be containing proper exceptions, was signed. Thereupon exercised subject to the burden of showing that the the plaintiff has brought the case to this court, on a compromise was beneficial to the estate. Wyman's Apwrit of error.
peal, 13 N. H. 18; Chouteau v. Suydam, 21 N. Y. 179; It is contended for the plaintiff in error that the evi- Chadbourne v. Chadbourne, 9 Allen, 173. dence was insufficient to warrant the finding that there The contract made by the first administrator havwas any contract between the first administrator and ing giren to the attorneys a power coupled with an inMr. Laurie and Mr. Crews, authorizing a compromise; terest, the authority to compromise was not impaired tbat the first administrator had no authority to make by the death of the first administrator, and his successuch a contract, or to make a compromise, without sor was bound by the contract. Story on Ageucy, SS the sanction of the Probate Court; that the plaintiff | 476, 477. was not bound by the contract made by the first ad- It is appareut, from the record, that Mr. Laurie conministrator; and that Laurie had no authority to tinued to be a copartner with Mr. Crews so far as this compromise without the co-operation of Crews. case was concerned. That being so he had authority
As to the finding of fact that there was a contract to make the compromise in question without the coby the first administrator giving to the attorneys an operation or consent of Mr. Crews. interest in the proceeds of the claim, with authority to No error of law is found in the proceedings in the compromise it, this court is prohibited, by section 1011 Circuit Court, and its orders, made January 20, 1880, of the Revised Statutes, from reversing a case on a and March 10, 1880, are writ of error for any error in fact. In this case there
Affirmed. was a dispute as to the fact, and evidence on both sides, and it was a fair exercise of the judgment of the TRUTH OF SLANDEROUS CHARGE NEED court, on the evidence before it, to make the finding NOT BE PROVED BEYOND REASON. of fact it did. Under such circumstances, an errone
ABLE DOUBT. ous finding of the fact cannot be held to be an error of law. Hyde v. Booraem, 16 Pet. 169, 176; Parks v. Tur
OHIO SUPREME (OURT COMMISSION. ner, 12 How. 39, 43.
JANUARY TERM, 1883. There is nothing to show that the Circuit Court was not correct in its conclusion that the right of recovery
BELL V. MCGINNESS.* in the suit was very doubtful, notwithstanding the
In an action of slander, for words which imputed to the judgment. This being so, as the writ of error was
plaintiff the crime of stealing a horse, the defendant as a pending, the compromise would seem to have been a
defense pleaded the truth of the defamatory words. proper one for the interests of the estate. It was said
Held, that to maintain this defense, it was not necessary that by this court, in Holker v. Parker, 7 Cranch, 436, 452, it be proved beyond a reasonable doubt. speaking by Chief Justice Marshall: “Although an
CTION for slander. The opinion states the case. attorney at law, merely as such, strictly speaking has no
Defendant below took a writ of error, right to make a compromise, yet a court would be disinclined to disturb one which was not so unreasonable Wallace & Billingsley, Jones & Murray and E. S. in itself as to be exclaimed against by all, and to Holloway, for plaintiff in error. create an impression that the judgment of the attor- J. A. Ambler, for defendant in error. ney has been imposed on or not fairly exercised in the
McCAULEY, J. The original action in the common case." We do not perceive that there was any want of
pleas was for slander. The slanderous words alleged authority in the first administrator to make the
in the petition were: “He stole the horse, without a contract he did. The contract not cham
doubt; there is so much evidence against him that it
will convict him." pertous under the laws of Missouri. Duke v. Har. per, 66 Mo. 51. The attorneys did not agree
The defendant, as a defense, alleged the truth of the
to pay any part of the costs or expenses of the litigation.
defamatory words, and on the trial offered evidence Nor do we find in the statutes of Missouri which are
tending to prove his defense. cited, nor in any of its judicial decisions, any thing
Upon the trial the court charged the jury that to
maintain this defense it must be proved beyond a reawhich forbids the making of such a contract as the
sonable doubt. Circuit Court found to have been made in this case. The administrator had the usual power of a trustee
This instruction to the jury is assigned for error. over the estate, under his responsibility for a breach
The cases in Ohio, bearing upon the correctness of of his trust. Perry on Trusts, $ 482; Overfield v. Bul
this instruction, are Lexington Ths. Co. v. Paver, 16 litt, 1 Mo. 537. The authority given to him by stat
Ohio, 324; Strader v. Mullane et al., 17 Ohio St. 624; ute (Wag. Stat., vol. 1, p. 87, $ 26) to commence and
Jones v. Greaves, 26 id. 2; Lyon v. Fleahmann, 34 id. prosecute actions fairly includes the power to make
151; and Shaul v. Norman, id. 157 sucb reasonable contracts in regard to compensation
The defamatory words, alleged in the petition, and the compromising of actions on doubtful claims as
amount to a charge of felony. the circumstances of particular cases may justify.
Ouly one of the cases above referred to, 16 Ohio, 324, The fact of the enactment in Missouri of a statute
sustains the charge given in the Common Pleas. The which went into effect November 1, 1879 (Rev. Stat. of
other cases, while the rule of preponderance of eviMo. of 1879, vol. 1, p. 37, $ 242), giving power to an ad
dence was held applicable in each of them, were all for ministrator to compound with a debtor, with the ap
misdemeanors or for fraudulent acts not amounting to
criminal offenses. probation of the judge of probate, does not imply that the power did not exist before witbout such approba
*Appearing in 40 Ohio State Reports.