This proposition as we have before shown is not definitely settled by any authoritative decision of the Federal Supreme Court. It is sustained however by the reasoning and the dicta of the judges in several cases in that court, and it has been held to be the law in most of the States. However, being a question under the Constitution it cannot be said to have been finally determined so as to preclude further argument until the United States Supreme Court has decisively passed upon it.

Fifth, where the contract is not made in the State in which the discharge is granted and is not made payable therein so as to be governed by the laws thereof, a discharge under the insolvent laws of such State is no bar to an action on the contract even though the insolvent law was in force at the time of the execution of the contract. Cook v. Moffat, 5 How. 295; McMillan v. McNeil, 4 Wheat. 209.

This rests upon the obvious ground that the contract never having been governed by the law of the State in which the discharge was granted, the insolvent law never formed a part of the contract even though in force before the contract was executed, and therefore a discharge thereunder would impair the obligation of the contract.

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 bound by the discharge, even though the contract was made in that State, provided the creditor did not voluntarily become in any manner a party to the proceedings. Baldwin v. Hale, 1 Wall. 223, overruling Scribner v. Fisher, 2 Gray, 43; Kelley v. Drury, 9 Allen, 27.

Seventh, where the creditor accepts a dividend or in any other manner becomes a party to the proceedings, he is bound by the discharge, even though a nonresident. Clay v. Smith, 3 Pet. 411; Soule v. Chase, 39 N. Y. 341.

Eighth, this is the rule, even where the discharge is granted by a foreign government. Matter of Coates, 3 Abb. App. Dec. 231.

Ninth, the proceedings do not bind citizens of another State who have not voluntarily appeared and waived their rights. Boyle v. Zacharie, 6 Pet. 635; Suydam v. Broadnax, 14 id. 75; Cook v. Moffatt, 5 How. 295; Baldwin v. Hale, 1 Wall. 223; Baldwin v. Bank of Newburg, id. 234, note; Gilman v. Lockwood, 4 id. 409; Bedell v. Scruton, 54 Vt. 494, and cases cited in note to § 525 of Wharton on Conflict of Laws.

Tenth, they do not bind him, even when he seeks to enforce his claim in the very court which granted the discharge. Donnelly v. Corbett, 7 N. Y. 500; Soule v. Chase, 39 id. 342.

Eleventh, nor even though the contract was governed by the laws of that State. Pratt v. Chase, 44 N. Y. 597; Von Glahn v. Varrenne, 1 Dill. 515; Baldwin v. Hale, 1 Wall. 223; Kelley v. Drury, 9 Allen, 27.

Twelfth, it is not necessary that the creditor should be a citizen of the State. The discharge will bind him, even though he be an alien resident of the State at the time of the inception of the insolvency proceedings. Von Glahn v. Varrenne, 1 Dill. 515.

The proceedings being regular and otherwise valid, only two questions can arise in determining the validity of an insolvent discharge. First, does the act under which the discharge was obtained impair the

obligation of a contract. Second, had the court jurisdiction? Whenever the first question must be answered in the affirmative, or the second in the negative, the discharge is void. The following rules, not as yet established by the courts, may therefore be regarded as sound:

First, the law being in force at the time of making

the contract, the discharge will be valid when it is the intention of the parties to the contract, no matter where executed, that the same shall be governed by the laws of the State in which the discharge is granted, although both parties were non-residents at the time of entering into the contract, provided the creditor be a resident of that State at the time of the institution of the bankrupt proceedings.

Second, the discharge will be invalid when the creditor was not a resident of the State at the time of the institution of the proceedings, even though the contract was made with reference to the laws of that State, and both parties were residents thereof at that time.

Third, the discharge is invalid where the contract was made with reference to the laws of some other State, although both parties were residents of the State in which the discharge was obtained both at the time of making the contract and at the time of the inception of the insolvency proceedings.

Other suppositive cases might be stated, but they are all governed by the same principles which control those already stated. GUY C. H. CORLISS.

ST. PAUL, MINN.

STATUTE OF LIMITATIONS AS TO NON-RESIDENTS.

MAINE SUPREME JUDICIAL COURT, SEPTEMBER 13,1883.

THOMPSON V. REED.*

The Statute of Limitations is no bar to an action brought in this State on a promissory note made and payable in New York, although the parties continued to reside there until any action thereon was barred by the statute of that State, when it does not appear that the payer has not resided in this State six years since the note became due.

Nor is it material that the maker of the note had attachable property in this State for eleven months after the note was payable.

ON report. Assumpsit upon a promissory note given

by the defendant to the plaintiffs, March 31, 1866, and on an account for money loaned at New York in the summer of 1866. The plea was the general issue and Statute of Limitations. At the trial the defendant consented to be defaulted in the sum of $1,187.11, with leave to report the case to the full court, who were to determine from the evidence introduced and offered whether the action is barred. If barred the default is to be taken off and plaintiffs nonsuited, otherwise judgment on the default.

iff.

The material facts are stated in the opinion. William L. Putnam and Joseph M. Trott, for plaint

C. W. Larrabee, for defendant.

VIRGIN, J. The Statute of Limitation is no bar to an action brought in this State on a promissory note made and payable in another State, although the parties continued to reside there until any action thereon was barred by the statute of that State.

It is the universally acknowledged rule of law that contracts are to be construed according to the law of the place where they are made and to be performed, but that they are to be enforced according to the lex

fori. And it is now well settled by the great current

of authority that as the Statute of Limitations operates merely upon the remedy, it is consequently local in its operation, and the law of the place where the remedy is sought, and not that of the situs of the contract, must control. Leroy v. Crowninshield, 2 Mason, 151;

*To appear in 75 Maine Reports.

Tribodeau v. Lavasseur, 36 Me. 362; Townsend v. Jamison, 9 How. 407; Brown v. Nourse, 55 Me. 230. Some of the States have statutory provisions allowing the interposition of the statute bar of another State where the defendant had resided for the requisite period. Thus Massachusetts, in 1880, enacted a statute providing in substance that no action shall be brought by any person whose cause of action has been barred by the laws of any State, territory or country while he has resided therein. Public Stat., chap. 197, § 11. But the statutes of this State contain 'no provision of like character.

The provision of the statute under which the plaintiffs seek to maintain this action is: "If any person is out of the State when a cause of action accrues against him, the action may be commenced within the time limited therefor after he comes into the State." Rev. Stat., ch. 81, § 99. There being no plea to the jurisdiction but a general appearance by the defendant, we assume no question of that kind would arise on the real facts although not disclosed by the case as reported. The case does find that both the plaintiffs and defendant resided in New York when and where the note was made and by its terms to be paid, and the account accrued, and continued to reside there until 1875; and that the defendant has resided there ever since the dealings between the parties recited by both note and account. Under these circumstances notwithstanding an action on the note and account would be barred in New York, this action is not barred here. Bulger v. Roche, 11 Pick. 36; Putnam v. Dike, 13 Gray, 535.

Nor does the fact that the defendant had property in this State for eleven months next after the note was given aid the defendant. (1) Because it does not appear that the plaintiffs knew the fact or could be charged with knowledge through due diligence. Crosby v. Wyatt, 23 Me. 156, 164; Little v. Blunt, 16 Pick. 359; and (2) because it is immaterial even if such fact were known to the plaintiffs.

Revised Statutes, chap. 81,§ 99, as originally enacted, provided that if any person, who at the time a cause of action accrued against him, was without the limits of the State, and "did not leave property or estate therein that could by the common and ordinary process of law be attached," etc., the action may be commenced within the time limited therefor after his return. Stat. 1821, chap. 62, § 9. Much trouble arose in satisfying juries of the fact that the creditor knew the debtor had attachable property here, or that his property was held in so public a manner as to amount to constructive knowledge, and to raise the presumption that if the creditor had used ordinary diligence the debtor's property might have been attached. Little v. Blunt, 16 Pick. 369, 365. And the property clause was repealed and omitted from the revision of 1840. Rev. Stat. (1840), chap. 146, § 28; Crehore v. Mason, 23 Me. 413.

That the property clause was intentionally omitted from the revision of 1840 is evident from a like change of the statute of Massachusetts. We derived our statutes in the early history of the State from the mother Commonwealth. Our statute of 1821 above cited was a substantial rescript of the statute of 1786, chap. 52, which continued in force until 1836, when the first revision of the Massachusetts statutes was made. The revision commissioners, after citing the section under examination, say: "If the creditor knows of the existence of such property, it is not to be supposed that he will neglect to take it, and prefer to rely on an action against the debtor if he shall happen to come into the State; and this provision in that case would be useless. If on the other hand, the debtor should leave property so situated, whether by design or accident, that it is not known to the creditor, it would be

unjust that the latter should be barred of his action and lose his debt, by reason of a fact, which was not, and in the common course of business could not be known to him. It is accordingly proposed in this section to omit this qualification of the rule as to absent defendants." Com. Rep.. Part III, 275. And the Legislature followed the recommendation of the commissioners, Massachusetts Rev. Stat. (1836), ch. 120, § 9, which was only four years before our first revision. Defendant defaulted.

EFFECT OF WILL AS TO AFTER-ACQUIRED LANDS.

NEW JERSEY COURT OF CHANCERY, OCTOBER TERM, 1883.

EXECUTOR OF GARDNER V. GARDNER.*

At common law, a will would not pass lands acquired by a testator subsequent to the date of his will.

By statute, lands acquired by a testator after the date of his will, will pass by his will, provided it contains words sufficient to pass them had he owned them when he made his will.

But after-acquired lands will not pass under a will which declares that the estate given by it consists of personalty only.

N final hearing on bill and answer.

ΟΝ

James B. Vredenburgh, for complainant.

M. T. Newbold, for defendants.

VAN FLEET, V. C. The object of the bill in this case is to procure a construction of the will of William Gardner, deceased. The testator, after making certain specific bequests, and giving several pecuniary legacies of fixed amount. and directing the payment of his debts and funeral expenses, directs as follows:

I give and bequeath all the residue of my estate, which consists of personalty only, to my executor hereinafter named, in trust, to apply the income of the sum of two thousand dollars to my late wife's niece, Adriana Clements, for her own use during her natural life, or until she shall marry, and from and after her marriage until her death, to apply the income of one thousand dollars to her use; and upon the further trust, as to the residue of my estate, to apply the income of the one equal fifth part thereof to the use of my daughter, Eleanor Jane, during her natural life, and at her death the said one-fifth to be divided equally among her issue."

The other four-fifths were directed to be held aud disposed of substantially in the same manner. The testator, at the date of his will, owned no lands, but held mortgages on real estate to the amount of $3,500. He subsequently, in August, 1876, made a further loan of $1,500 to the mortgagor, and took a single mortgage on the same premises for the whole $5,000, but retained, uncanceled, the prior mortgages. This last mortgage was afterward foreclosed and the mortgaged premises sold at judicial sale to the testator. He acquired title April 4, 1878. His will bears date May 21, 1875, and he died May 19, 1879. The question the complainant asks to have decided is, whether the lands thus acquired by the testator passed by his will.

At common law, a devise of land was held to be in the nature of a conveyance, and to pass nothing the testator did not own at the date of his will. Land acquired after the date of the will did not pass. 1 Jarm. on Wills (R. & T. ed.), 155; Bruen v. Bragaw, 3 Gr. Ch. 261. This rule has however been changed by statute. A statute passed in 1851 declares that real estate *To appear in 10 Stewart's (37 N. J. Eq.) Reports.

acquired by a testator after making his will shall pass by any general or special devise, or sale under any power of sale contained in the will sufficient to include it, had the same been acquired before the making of the will, unless a contrary intention be manifest on the face of the will. Rev., p. 1248, § 24. But for the statute, it is clear the lands in question would not have passed. But the statute says, though acquired after the making of the will, they shall pass under the will if the will contains words which would have passed them had they been owned by the testator at the date of his will. Now it is obvious this will contains no such words.

If the testator had owned these lands at the date of his will, there can be no doubt, I think, that they would not have passed, for he says, very plainly, that the property on which this clause of his will shall operate "consists of personalty only." Real estate is distinctly excluded by his statement that the residuary estate which he gives to his executor "consists of personalty only." To hold that the will passed real estate, in spite of so plain a declaration of his intention, would be giving effect to the will contrary to the intention of the testator manifest on the face of his will. If we say the words "which consists of personalty only" were used by the testator simply to describe the nature or character of his property at the date of his will, and not to indicate the property which it should pass, we do not advance a single step toward the construction contended for by the complainant, for before we can say that the will passed the lands, it is indispensable, according to the statute, that we should find words in the will sufficient to include the lands. That cannot be done where the words of the will plainly say that the property given "consists of personalty only."

My judgment is that the testator died intestate as to the lands in question. This construction, I think it is quite probable, does not give effect to the testator's latest intentions, but the court, in endeavoring to find out what disposition the testator intended to make of his property by will, can look at nothing but his written words, and whatever he has said in writing, in conformity to the requirements of the statute, must be declared to be his last and only will. The law gives effect to no other.

NOTE.-General expressions in a residuary clause that will pass testator's personal property acquired after executing his will, do not pass after-acquired lands, Loveren v. Lamprey, 22 N. H. 434, 442 and cases cited; Sharpe v. Allen, 5 Lea, 81; Girard v. Philadelphia, 4 Kawle, 323; Lyndes v. Townsend, 33 N. Y. 558; see Ferry v. High, 3 Head, 349; Russell v. Chell, L. R., 19 Ch. Div. 432; Dunlap v. Dunlap, 74 Me. 402; Douglass v. Douglas, Kay, 400; Tolar v. Tolar (3 Hawks, 74), 14 Am. Dec. 576, note.

WHEN AFTER-ACQUIRED LANDS DO PASS.-Under a a devise of the proceeds of lands directed to be sold by executors, Byrnes v. Baer, 86 N. Y. 210.

Where a testatrix, who at the time owned no real estate, made her will disposing of "all my property," Cushing v. Aylwin, 12 Metc. 169.

"All the balance of my property and effects," Henderson v. Ryan, 27 Tex. 670.

After a general bequest of personal property, "all my real estate now possessed by me," Lent v. Lent, 24 Hun, 436.

"All that dwelling wherein D. now resides," Midland R. Co. v. Otley Branch, 34 Beav. 525.

"All that part of a certain farm which I now own, lying east of the road, etc.," Garrison v. Garrison, 5 Dutch. 153; see Emuss v. Smith, 2 De G. & Sm. 322; Castle v. Fox, L. R., 11 Eq. 542; Smith v. Puryear, 3 Heisk. 706.

"The real and personal estate whereof I am in anywise seised or otherwise possessed, either in possession or reversion, which I have any power to dispose of," Roney v, Stiltz, 5 Whart. 381.

A testator, possessed of only personalty, gave "all the rest, residue and remainder of my goods, chattels, stock in trade, estate and effects of what nature or kind soever," O'Toole v. Browne, 3 E. & B. 572.

One having only the possession of lands in B., and owning neither lands nor personalty, gave H. the land whereon his (testator's) father lived, and the lauds in B. and ten slaves, Turpin v. Turpin, Wythe (Va.) 137; see also Miller's Estate, 48 Cal. 165; Smyth v. Smyth, L. R. (8 Ch. Div.), 561; Harper v. Blean, 3 Watts, 471; 1 Jarm. on Wills (R. & T. ed.), 604.

WHEN AFTER-ACQUIRED LANDS DO NOT PASS.-A devise of "all the real and personal estate I now possess," Quinn v. Hardenbrook, 54 N. Y. 83; see Cole v. Scott, 1 Macn. & G. 518; Brewster v. McCall, 15 Conn. 274; Hutchinson v. Barrow, 6 H. & N. 583.

A general charge on testator's "estate," Warner v. Swearingen, 6 Dana, 195.

"Such worldly estate as it hath pleased the Almighty to bless me with," Marshall v. Porter, 10 B. Mon. 1.

After authority to dispose of property to pay his debts, a contingent gift of "the whole of my property," Smith v. Edrington, 8 Cranch, 66.

After disposing of various articles of personal property, "should my executor find other property belonging to me not herein any wise disposed of," Newell v. Toles, 17 Hun, 76.

A testator gave to his sister a tract of forty acres, all the land he then owned, and gave to his mother "all my other property, consisting of horses, cattle, hogs, money and effects whatsoever," Smith v. Hutchinson, 61 Mo. 83.

"All my real estate situated in S., also all the residue of my personal estate and posessions of whatever kind or name," Blaisdell v. Hight, 69 Me. 306.

"The balance of my estate remaining in Carolina to be collected and sold and equally divided among my lawful heirs," Meador v. Sorsby, 2 Ala. 712; see Jepson v. Key, 2 H. & C. 873; Miles v. Miles, L. R., 1 Eq. 462; Cox v. Bennett, L. R., 6 Eq. 422.

Where a testator devised all the remainder of his real estate, and then enumerated the lands comprised in such remainder, Crombie v. Cooper, 22 Grant's Ch. 267; 24 id. 470.

Whether a gift of a mortgage will pass the land covered thereby, which land was afterward acquired by testator, Van Wagenen v. Brown, 2 Dutch. 196; Ballard v. Carter, 5 Pick. 112; Brigham v. Winchester, 1 Metc. (Mass.) 390; Martin v. Smith, 124 Mass. 111; Woods v. Moor, 4 Sandf. 579; Pruden v. Pruden, 14 Ohio St. 253; Yardley v. Holland,, L. R., 20 Eq. 428; see Lanning v. Cole, 2 Hal. Ch. 102; Scaife v. Thomp son, 15; S. C., 337; Warren v. Taylor, 56 Iowa, 182; Napton v. Leaton, 71 Mo. 358; Leeds v. Munday, 3 Ves. 348; Hancock v. Hancock, 22 N. Y. 568; Humphreys v. Humphreys, 2 Cox, 184.

How far a devise executed before the statute, authorizing after-acquired lands to pass, is controlled by a codicil executed after that enactment, York v. Walker, 12 M. & W. 591; Emuss v. Smith, 2 De G. & Sm. 722; Jones v. Shewmaker, 35 Ga. 151; Smith v. Puryear, 3 Heisk. 706.-JOHN H. STEWART, REP.

COMPROMISE OF ACTION BY ATTORNEYCHAMPERTY-DEATH DOES NOT REVOKE POWER COUPLED WITH

INTEREST.

SUPREME COURT OF THE UNITED STATES. FEBRUARY 4, 1884.

JEFFRIES V. MUTUAL LIFE INSURANCE Co. of NEW YORK.

K. died in Missouri, in 1871, having a policy of insurance on his life. J. was appointed there his administrator. L. and T., copartners as attorneys-at-law, brought a suit on the policy, in which, after a long litigation, there was a judgment for the plaintiff for $13,495, in 1877, in a Circuit Court of the United States. J. had died in 1873, and C. had been appointed administrator in his place, and substituted as plaintiff. The case was brought into this court, by the defendant, by a writ of error. Before it was heard here L. compromised the judgment with the defendant, in 1879, receiving in full $9,401.42, and entered satisfaction of the judgment on the record. C. then moved the Circuit Court to vacate the satisfaction, on the grounds that L. had no authority to enter it, and had been notified by C., after the compromise had been made and before the satisfaction had been entered, that he would not ratify the compromise, and that the compromise was unlawful because not authorized by the Probate Court. The Circuit Court heard the motion on affidavits, and found as a fact, that J., while administrator, entered into a contract with L. and T., whereby they agreed to prosecute the claim for a portion of the proceeds, with full power to compromise it as they should please, and that the claim was a doubtful one, and held that the compromise was rightly made, and that the plaintiff was bound by the contract of J., and denied the motion. On a writ of error by the plaintiff, Held:

(1) This court cannot review such finding of fact, there being evidence on both sides, and the error, if any, not being an error of law;

(2) The contract made was not champertous or unlawful, and J. had authority to make it;

(3) The contract having given to L. and T. a power coupled with an interest, the death of J. did not impair the authority to compromise, and C. was bound by it;

(4) L., having continued to be a copartner with T., so far as this case was concerned, had authority to make the compromise without the co-operation or consent of T.

IN

N error to the Circuit Court of the United States for the Eastern District of Missouri. The opinion states the case.

BLATCHFORD, J. On the 19th of August, 1871, one Allan A. Kennedy died in Franklin county, Missouri, having two policies of insurance on his life, one in the Economical Life Insurance Company, of Providence, R. I., for $5,000, and the other in the Mutual Life Insurance Company, of New York, the defendant in error, for $10,000. Charles W. Jeffries was appointed administrator of Kennedy, by the Probate Court of Franklin county. At that time Joseph S. Laurie and Thomas W. B. Crews were attorneys-at-law, and copartners as such, in St. Louis, Missouri. The policies were put into their hands for suit, and they brought a suit on each in the name of Jeffries, as plaintiff, in the State court of Missouri. The suits were both of them removed into the Circuit Court of the United States for the Eastern District of Missouri. In each suit an answer was put in setting up a breach of a warranty by the assured, in that in the application for the insurance he stated that he was a single man when he was a married man. In the suit against the Economical Company there was a demurrer to the answer, on the ground that the answer failed to allege that the misstatement was material to the risk. The demurrer was overruled by the Circuit Court and a judgment was entered for the defendant. On a writ of error, this court affirmed the judgment, at October Term, 1874, 22 Wall. 47. In the suit against

the defendant in error, which is the suit now before us, there was a reply to the answer, alleging that under the policy the misstatement was not a breach of a warranty, and that the statement was the representation of the agent of the company, and not that of the assured. In January, 1873, Charles W. Jeffries 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, 1873. In November, 1873, while the suit against the Economical Company was pending in this court, this suit was tried in the Circuit Court before the court without a jury. That court rendered a judgment for the plaintiff. The defendant brought the case to this court by a writ of error, and at October Term, 1875, the judgment was reversed, on the authority of the case in 22 Wall. and a new trial was awarded. In April, 1877, the case was again tried, and before a jury, which found a verdict for the plaintiff, but the Circuit Court set it aside. The case was tried again before a jury, in October, 1877, and a verdict was rendered for the plaintiff, on which a judgment in his favor was entered, October 9, 1877, for $13,495. On the 27th of October, 1877, the defendant sued out a writ of error returnable to this court at October Term, 1878. The case was docketed here, and the appearance of Joseph S. Laurie was entered for the defendant in error, the present plaintiff in error, and that of O. H. Palmer for the plaintiff in error, the present defendant in error. In February, 1879, Mr. Laurie compromised the judgment with the Mutual Company. Interest at six per cent was computed on the judgment from its entry to November 22, 1878, and added, and an abatement of $5,000 was then made, and the remainder, $9,401.42, was paid by the company to Mr. Laurie. He surrendered the policy to the company, a stipulation signed by Mr. Laurie and by Mr. Palmer, agreeing that the suit might be dismissed from the docket of this court without costs to either party as against the other, was presented to this court and filed, and on the 11th of March, 1879, an order was made by this court dismissing the writ of error, each party to pay his own costs. On the 15th of December, 1879, Mr. Laurie, as attorney for the plaintiff, entered satisfaction of the judgment on the margin of the record of the judgment, in the law record book in the office of the clerk of the Circuit Court, in the presence of the deputy clerk, who signed the entry as a witness, the entry being as follows: "I hereby enter satisfaction of this judgment in full, this 15th day of December, 1879. C. S. Jeffries, administrator, etc., by Joseph S. Laurie, his attorney." The plaintiff immediately filed a motion in the Circuit Court to vacate the entry of satisfaction, alleging as grounds therefor that the entry was made by Laurie without authority from the plaintiff, and in fraud of his rights, and without consulting him, and after Laurie had been notified that the plaintiff would not ratify the said compromise; that the plaintif had learned only a few days previously of the dismissal of the writ of error in March, 1879, and of the compromise made by Laurie, and had at ouce notified Laurie and the defendant that the compromise was made without authority from him and he would not ratify it; and that he could not authorize a compromise without the order of the Probate Court of Franklin county which order had not been made. The motion was supported and opposed by affidavits, the defendant appearing by counsel. The court, as appears from its opinion, which is set forth in the record, found as a fact, from the evidence before it, which evidence is before us, that Charles W. Jeffries, while administrator, entered into a contract with Mr. Laurie and Mr. Crews, whereby they agreed to prosecute the claim for a portion of the proceeds, with full power to compromise it as they should please, and that the claim

was a doubtful one. On the ground of such express authority and of the doubtfulness of the claim the court held that the compromise was rightly made, notwithstanding the judgment. It also held that the plaintiff was bound by the contract made by his predecessor. An order was made overruling the motion, and afterward a motion for a rehearing, founded on further affidavits, was denied. A bill of exceptions setting forth all the papers used on both motions, and containing proper exceptions, was signed. Thereupon the plaintiff has brought the case to this court, on a writ of error.

It is contended for the plaintiff in error that the evidence was insufficient to warrant the finding that there was any contract between the first administrator and Mr. Laurie and Mr. Crews, authorizing a compromise; that the first administrator had no authority to make such a contract, or to make a compromise, without the sanction of the Probate Court; that the plaintiff was not bound by the contract made by the first administrator; and that Laurie had no authority to compromise without the co-operation of Crews.

As to the finding of fact that there was a contract by the first administrator giving to the attorneys an interest in the proceeds of the claim, with authority to compromise it, this court is prohibited, by section 1011 of the Revised Statutes, from reversing a case on a writ of error for any error in fact. In this case there was a dispute as to the fact, and evidence on both sides, and it was a fair exercise of the judgment of the court, on the evidence before it, to make the finding of fact it did. Under such circumstances, an erroneous finding of the fact cannot be held to be an error of law. Hyde v. Booraem, 16 Pet. 169, 176; Parks v. Turner, 12 How. 39, 43.

There is nothing to show that the Circuit Court was not correct in its conclusion that the right of recovery in the suit was very doubtful, notwithstanding the judgment. This being so, as the writ of error was pending, the compromise would seem to have been a proper one for the interests of the estate. It was said by this court, in Holker v. Parker, 7 Cranch, 436, 452, speaking by Chief Justice Marshall: "Although an attorney at law, merely as such, strictly speaking has no right to make a compromise, yet a court would be disinclined to disturb one which was not so unreasonable in itself as to be exclaimed against by all, and to create an impression that the judgment of the attorney has been imposed on or not fairly exercised in the case."

We do not perceive that there was any want of authority in the first administrator to make the contract he did. The contract was not champertous under the laws of Missouri. Duke v. Har

to

per, 66 Mo. 51. The attorneys did not agree pay any part of the costs or expenses of the litigation. Nor do we find in the statutes of Missouri which are cited, nor in any of its judicial decisions, any thing which forbids the making of such a contract as the Circuit Court found to have been made in this case. The administrator had the usual power of a trustee over the estate, under his responsibility for a breach of his trust. Perry on Trusts, § 482; Overfield v. Bullitt, 1 Mo. 537. The authority given to him by statute (Wag. Stat., vol. 1, p. 87, § 26) to commence and prosecute actions fairly includes the power to make such reasonable contracts in regard to compensation and the compromising of actions on doubtful claims as the circumstances of particular cases may justify. The fact of the enactment in Missouri of a statute which went into effect November 1, 1879 (Rev. Stat. of Mo. of 1879, vol. 1, p. 37, § 242), giving power to an administrator to compound with a debtor, with the approbation of the judge of probate, does not imply that the power did not exist before without such approba

tion. This transaction occurred before such enactment. An administrator has general power to dispose of the personal effects of his intestate (2 Williams on Exrs. [6th Am. ed.], p. 998), and to compound a debt, if it is for the benefit of the trust estate. 3 id., p. 1900, and note g2. And even when statutes exist providing for compromises with debtors with the approval of a Probate Court, it is held that the right to compromise which before existed is not taken away, but may be exercised subject to the burden of showing that the compromise was beneficial to the estate. Wyman's Appeal, 13 N. H. 18; Chouteau v. Suydam, 21 N. Y. 179; Chadbourne v. Chadbourne, 9 Allen, 173.

The contract made by the first administrator having given to the attorneys a power coupled with an interest, the authority to compromise was not impaired by the death of the first administrator, and his successor was bound by the contract. Story on Agency, $S 476, 477.

It is apparent, from the record, that Mr. Laurie continued to be a copartner with Mr. Crews so far as this case was concerned. That being so he had authority to make the compromise in question without the cooperation or consent of Mr. Crews.

No error of law is found in the proceedings in the Circuit Court, and its orders, made January 26, 1880, and March 10, 1880, are

Affirmed.

TRUTH OF SLANDEROUS CHARGE NEED NOT BE PROVED BEYOND REASON

ABLE DOUBT.

OHIO SUPREME COURT COMMISSION. JANUARY TERM, 1883.

BELL V. MCGINNESS.*

In an action of slander, for words which imputed to the plaintiff the crime of stealing a horse, the defendant as a defense pleaded the truth of the defamatory words. Held, that to maintain this defense, it was not necessary that it be proved beyond a reasonable doubt.

A

CTION for slander. The opinion states the case. Defendant below took a writ of error. Wallace & Billingsley, Jones & Murray and E. S. Holloway, for plaintiff in error.

J. A. Ambler, for defendant in error.

MCCAULEY, J. The original action in the common pleas was for slander. The slanderous words alleged in the petition were: "He stole the horse, without a doubt; there is so much evidence against him that it will convict him."

The defendant, as a defense, alleged the truth of the defamatory words, and on the trial offered evidence tending to prove his defense.

Upon the trial the court charged the jury that to maintain this defense it must be proved beyond a reasonable doubt.

This instruction to the jury is assigned for error.

The cases in Ohio, bearing upon the correctness of this instruction, are Lexington Ins. Co. v. Paver, 16 Ohio, 324; Strader v. Mullane et al., 17 Ohio St. 624; Jones v. Greaves, 26 id. 2; Lyon v. Fleahmann, 34 id. 151; and Shaul v. Norman, id. 157

The defamatory words, alleged in the petition, amount to a charge of felony.

Only one of the cases above referred to, 16 Ohio, 324, sustains the charge given in the Common Pleas. The other cases, while the rule of preponderance of evidence was held applicable in each of them, were all for misdemeanors or for fraudulent acts not amounting to criminal offenses.

Appearing in 40 Ohio State Reports.