Central Law Journal.

ST. LOUIS, MO., MARCH 27, 1896.

The senate at Washington has recently passed a wise measure in the form of a bill to withdraw from the United States Supreme Court all jurisdiction in criminal cases, except those involving capital punishment, and to transfer this jurisdiction to the United States Courts of Appeals. This will be a great relief to the Supreme Court whose docket has always been encumbered with embezzlement cases and other criminal matters which have greatly impeded more important litigation. The Circuit Courts of Appeal are well able to attend to such cases and are quite as likely to do them justice as the supreme court is. It is, however, proper that cases involving the death penalty should have the right of appeal to the highest tribunal in the land.

A case recently decided by the court of Oyer and Terminer of Delaware (State v. Lodge, 33 Atl. Rep. 312), has been the subject of considerable controversy and criticism, some upholding the doctrine announced, others disputing it. The court, in that case, held that dying declarations may be contradicted by proof of previous inconsistent statements by the deceased. The technical argument in favor of such position is thus stated by the court: Dying declarations are admitted in homicide cases because the parties are apprehensive of impending death, and there is the prospect of almost immediate dissolution on the ground that, as they are about to enter the presence of their maker, it is supposed that they will not dare to deceive any more than when they invoke the attention of their Creator to the oath when made, so that the fact of their coming dissolution is considered to be quite as binding as the taking of an oath in its obligation upon them. The objection made always is that the accused is deprived of the opportunity of calling the attention of the person who supposed himself to be about to die to certain facts, which, if brought to his attention, he might modify his statement or make none at all; that there is no opportunity to test his judgment, the strength of his recollection, or his bias. But the law says that insures jusVol. 42-No. 13.

tice in the greater number of cases, and that it is necessary to let it in, although it does deprive the defendant of testing the memory of the witness and his truthfulness by cross-examination. Then it is as though it says: "Very well, if you are deprived of that opportunity of ascertaining if that witness was wrong, and of bringing any witness to contradict him, when we let in the dying declarations, without an oath, you ought to have the right to put in testimony of previous declarations, without laying the ground." In other words, the party on one hand says: "If you let in the dying declarations, I ought to have the right to contradict them (aside from the rule that I am bound to lay the ground for a contradiction) by proof of a previous conversation." And so the two, according to Judge Field and these other authorities, seem to balance each other; and, where there is a balance, the law leans in favor of human life or personal liberty. That is just the situation. Now the question is, where there is a loss of cross-examination on the side of the defense and also by the State, in that you have not laid the ground, whether the favor of the law should not be on the side of liberty and life, and should let in the previous statements that are contradictory of the statements made by the person who sup

posed she was dying.

posed she was dying. Therefore, as dying declarations are admitted on the ground of necessity, ought not, asks the court, proof of contradictory or inconsistent statements by the deceased to be also admitted on the same ground? Bearing in mind the reason of the rule which admits in evidence declarations of this character, the view of the Delaware court seems warranted and in the interest of justice. In the Harvard Law Review for February, however, will be found a vigorous criticism of the ruling.

NOTES OF RECENT DECISIONS.

LANDLORD AND TENANT-LEASED Building -DAMAGE BY FIRE-INSURANCE.-It is held by the Supreme Court of Tennessee in Anderson v. Miller, 33 S. W. Rep. 615, that an owner of a building, though he has, under a fire policy, recovered the full loss sustained by the burning of his building, caused by his lessees, in violation of their lease, storing

cotton therein, may, in his own name, sue his lessees for the damages to the building. The court said that even if it be conceded that the insurance company, having paid the entire fire loss, is now entitled to be subrogated to the rights of the insured, as against the tort feasor, or to recover back from him the amount he recovers, still it does not prevent a recovery in the name of the insured for the damage sustained. The question of who will be entitled to the proceeds of the recovery -the insurer or the insured-is a matter between them, and constitutes no defense to an action for the damages caused by the wrong, which, in any event, must be brought in the name of the owner and insured, although it might be for the use of the insurer. 24 Am. & Eng. Enc. Law, pp. 308-30; Perrott v. Shearer, 17 Mich. 48, 55, 56; Clark v. Wilson, 103 Mass. 219-227; Hayward v. Cain, 105 Mass. 213; Weber v. Railroad Co., 35 N. J. Law, 409; Mason v. Sainsbury, 3 Doug. 61; Yates v. Whyte, 4 Bing. (N. C.) 272; Hart v. Railroad Corp., 13 Metc. (Mass.) 99; Insurance Co. v. Woodbury, 45 Me. 453; Carpenter v. Insurance Co., 16 Pet. 501; Insurance Co. v. Updegraff, 21 Pa. St. 518; Kernochan v. Insurance Co., 17 N. Y. 428; Honore v. Insurance Co., 51 Ill. 410; Insurance Co. v. Boomer, 52 Ill. 442.

ACCORD AND SATISFACTION RECEIPT IN FULL-LIQUIDATED AND UNLIQUIDATED CLAIM. -In Tanner v. Merrill, 65 N. W. Rep. 664, it was held by the Supreme Court of Michigan that where defendants deducted from plaintiff's wages an amount paid by them for railroad fare for plaintiff, for which latter sum plaintiff claimed that defendants and not he were liable, the defendants disputing such liability for fare and plaintiff accepting the amount tendered and giving a receipt in full, that he was precluded from maintaining an action for the sum so deducted. The rule is well settled that where a certain sum is tendered and accepted in satisfaction of a claim, the amount of which is unliquidated, the transaction will be held an accord and satisfaction, although no formal release be given. A comparatively recent illustration is Fuller v. Kemp, in the New York Court of Appeals, 138 N. Y. 231. In an earlier Michigan case-Leeson v. Anderson, 58 N. W. Rep. 72,-it was held that a claim by the

holder of a promissory note past due was not an unliquidated claim, and that acceptance of a less sum than the face of the note, with an agreement to discharge the debt, did not operate to fully release the debtor. The point involved in Tanner v. Merrill was whether the claim of plaintiff on account of wages and railroad fare constituted a single claim, and whether, if so, it was a liquidated or unliquidated claim. The question was somewhat close and two of the judges of the court dissented.

SLANDER-DISHONOR OF CHECK-BANKS.The case of Suenden v. State Bank, 65 N. W. Rep. 1086, decided by the Supreme Court of Minnesota, presents an unusual question in the law of slander. It is held that when a banker has in his hands funds of a depositor for the purpose of paying the depositor's checks and the depositor is a trader or merchant, and his check is dishonored by the banker, and returned to the payee, for the alleged reason that he has not sufficient funds of the maker in his hands to pay the same, when he in fact has, it amounts to a slander of the merchant or trader in his business, and he is entitled to recover general compensatory damages in an action against the banker. The court says:

It is held by the authorities that in such a case the plaintiff's recovery is not limited to nominal damages, but he is entitled to recover general compensatory damages. Rolin v. Steward, 14 C. B. 595; Schaffner v. Ehrman (Ill. Sup.), 28 N. E. Rep. 917; Bank v. Goos (Neb.), 58 N. W. Rep. 84; Patterson v. Bank, 130 Pa. St. 419, 18 Atl. Rep. 632; 3 Am. & Eng. Enc. Law, 225; 1 Suth. Dam. (2d Ed.) § 77. The case of Patterson v. Bank, supra, seems to place the right to recover more than nominal damages in such a case on the ground of public policy, but the other cases place it rather on the ground that the wrongful act of the banker in refusing to honor the check imputes insolv ency, dishonesty, or bad faith to the drawer of the check, and has the effect of slandering the trader in his business. We are of the opinion that the recov ery of more than nominal damages can, on sound principle, be sustained on the latter ground, where the drawer of the check is a merchant or trader. To refuse to honor his check is a most effectual way of slandering him in his trade, and it is well settled that to impute insolvency to a merchant is actionable per se, and general damages may be recovered for such a slander. Townsh. Sland. & L. (4th Ed.) § 191; Odger, Sland. & L. (2d Ed.) 80. Respondent's position that an action of tort cannot be maintainad in such a case as this, and that plaintiff's only remedy is an action on contract, in which only nominal damages can be recovered, is not sustained by the authorities. The case of Marzetti v. Williams, 1 Barn. & Adol. 415, cited by him, was an action in tort. The amount of the verdict is not reported, but it is very evident that

it was only for a nominal amount, and the only question before the court was whether or not the defendant was entitled to a nonsuit because the action should have been brought on contract, not in tort. The court held against the defendant on that point, and what is said beyond this is merely obiter, and was so regarded in the subsequent case of Rolin v. Steward. In Prehn v. Bank, L. R. 5 Exch. 92, the only question was whether plaintiffs were entitled to recover of the bank certain sums which they had paid to save their credit by procuring money elsewhere to pay bills drawn by them on the bank, and to prevent the bills from going to protest after the bank had notified them that it would not pay these bills, although it had funds in its hands for that purpose. It was held that they could recover the full sum so paid by them to preserve their credit, and the authority of Rolin v. Steward was expressly recognized. The case of Brooke v. Bank, 69 Hun, 202, 23 N. Y. Supp. 802, was an action by the receiver of an insolvent whose check had been wrongfully dishonored by the bank. The plaintiff was forced to concede that he could not maintain an action of tort, or recover any damages but such special damages as he alleged and could prove in an action for breach of a contract. These are all the cases cited which have any bearing on the case. These are the only questions raised worthy of consideration. It necessarily follows from the foregoing conclusions that the order appealed from must be reversed.

-PER

EXECUTORS AND ADMINISTRATORS SONAL LIABILITY ON CONTRACT.-The Supreme Court of Montana says, in First Nat. Bank v. Collins, 43 Pac. Rep. 499, that an administrator is personally liable on a note signed by him as such, the proceeds of which were placed with the payee, a bank, and paid out on checks drawn by him to pay, generally, bills and debts of the estate. The court says:

The defendants, in their answer, make their allegations with some vigor of language, but when we arrive simply at the facts set up, the pleading of defendants seem to be that they, as administrators of the Higgins estate, borrowed this money and used it for the estate. We cite the following remarks from some of the leading text writers upon the law of administration, negotiable instruments and commercial paper: "It is a well recognized principle that for liabilities contracted by the personal representative, although for the benefit and in the interest and behalf of the estate, it is not liable to creditors. Disbursements, reasonable in amount and for services necessary in the proper discharge of the duties imposed upon them, will constitute a charge in favor of executors and administrators against the estate, although their allowance should leave no surplus to pay creditors of the deceased; but in the absence of statutory authority the probate court, as already stated, has no jurisdiction to adjudicate between the personal representative and the creditor. It follows that the estate is not liable to an attorney for his services at the instance of an executor or administrator, but that the latter is himself liable in a suit by the attorney. So for corn fed to the stock of the estate; for the terms of a contract by the administrator in renting the land of the estate. The same holds good in respect of ne

gotiable paper made, indorsed or accepted by him, although he add to his signature his official character; and a fortiori where he gives a bond. So where the executor employs a salesman to take charge of the stock in trade belonging to the estate, or a sawyer to saw lumber. So where money is borrowed by pledging property of the estate, unless pledged for the pur. poses of administration. For the same reason, the estate is not bound by the administrator's agreement to credit a note payable to his decedent with the value of work done upon the lands of the estate." 2 Woerner Admn., § 356. "The executor or administrator of a decedent has no power to bind the latter's estate by any note or bill which he may make in his representative capacity. So also is it impossible for the execu tor or administrator to bind the estate by the acceptance of a bill drawn in settlement of a claim against the estate. In all such cases, the executor or administrator is personally liable, even though the signature is stated in the most explicit manner to have been made in his representative character." Tied. Com. Paper, § 146. "An administrator or executor cannot bind the decedent's estate by any negotiable instrument. He can only bind himself. If he make, accept or indorse a negotiable instrument he will bind him. self personally, even if he adds to his own name the designation of his office as personal representative. Thus, if he signs himself, 'A B, executor (or administrator) of C D,' or 'A B, as executor of C D,' the representative terms will be rejected as surplusage. And an accommodation indorser, or acceptor, who pays the amount of the instrument, has no claim against the decedent's estate. But if the bill or note of the personal representative be taken for a debt of the decedent, the estate is discharged from liability, and the representative alone is bound." 1 Daniel, Neg. Inst. § 262. "Where a note or bill is given by an executor or administrator, as such, he will, in general, be individually liable for its payment. So upon an indorsement by him as executor; or upon his written promise to pay such debt, he having assets of the estate in his hands at the time of giving the promise. This is true, also, where he has given his note in renewal of one made by his testator. In like manner, an administrator will be individually liable on a note given by him for personal property purchased for the benefit of the estate. But a note given by an administrator, and expressed to be 'for value received by A (the intestate) and his heirs,' has been held to be void for want of consideration. The mere addition of 'administrator' to an acceptor's signature does not qualify his liability or render the acceptance of a bill conditional. But, in general, an executor, like an agent, must expressly limit his promise to payment out of the estate represented in order to avoid individual liability on it. And merely adding the word 'administrator' will not amount to such a restriction, as we have seen; especially where the estate administered is not particularly designated." 1 Rand. Com. Paper, § 439. See also numerous cases cited in these textbooks, which we will not review.

It is not pretended that these notes were given for the expenses of administration. This court said, in Dodson v. Nevitt, 5 Mont. 518, 6 Pac. Rep. 358: "Claims against the estate are those in existence at the date of the death of the deceased. Other claims against an estate are those incurred by the administrator or executor in settling the estate, and are properly denominated 'expenses of administration."" The rule seems to be as laid down by the above-quoted writers. It is said, in Dunne v. Deery, 40 Iowa, 251, a case relied upon by the appellants, as follows: "The

rule is very well settled that an administrator or executor cannot bind the assets of the deceased by his promissory note. If he executes a note and adds to his signature, 'as executor for' the deceased, he will nevertheless be personally liable. King v. Thom, 1 Term R. 489; Aspinall v. Wake, 10 Bing. 55; Davis v. French, 20 Me. 21; Walker v. Patterson, 36 Me. 273. But while the administrator will be personally and alone bound upon the note, yet if that for which it was given was legally a claim against the estate, the giving and accepting the note will not, without more, discharge the estate." Counsel, in argument, cite this Iowa case as showing that the case at bar is an excep. tion to the general rule, but it does not appear in the case before us that that for which the note was given was already legally a claim against the estate. We take the following from another case relied upon by the appellants-McLaughlin v. Winner (Wis.), 23 N. W. Rep. 402: "It is a general rule that, upon all contracts made by an executor or administrator, in the discharge of his duties as such, he is liable personally; and his liability does not depend upon the fact that he has assets in his hands sufficient to dis. charge the debts so incurred; and the judgment, if any be recovered, is to be satisfied out of his estate, and not out of the estate of the deceased. There are, undoubtedly, exceptions to the general rule, but they depend upon equitable considerations, which clearly show that the estate in the hands of the executor or administrator ought to be charged with the payment of the claim, rather than the property of the executor or administrator"-citing many cases. The case at bar, in our opinion, is not an exception to the rule that the administrators are personally liable. It does not appear that the notes given by them were simply an acknowledgment of a former debt existing against the estate and created by the deceased. It does not appear that the money received by the estate upon the notes given was used for purposes of administration or funeral expenses, if such facts would be im. portant if they existed. It does not appear that the money so obtained was upon any order or permission of a court having power to make such order or give such permission. It does not appear that the money was used in the actual preservation of the estate, as discussed in Dunne v. Deery, supra.

The principle involved in Goldnamer v. O'Brien, 33 S. W. Rep. 831, decided by the Court of Appeals of Kentucky, is an old and well recognized one but its application to the facts of that case was somewhat novel and interesting. The holding was that in an action for inducing plaintiff to submit to an attempted abortion, where defendant was not responsible for the pregnancy if plaintiff voluntarily went to a certain city to have the abortion performed, she could not recover. The court says:

While it is not directly shown that either of them employed or otherwise procured the physician, and such conclusion is based on the barest inference, yet this question was properly submitted to the jury, and we shall assume such a state of facts. Waiving other questions, the important one on this appeal is, can the plaintiff maintain this action? Or, rather, as the pe

tition avers an abduction and attempted abortion, against the plaintiff's will and consent, the question is, is she entitled to a judgment upon the state of fact thus assumed to exist, and apparently found to exist by the jury? The right to recover is, of course, clear, unless it is destroyed by the complainant's consent to the assault, and whether this affects the right is a question of much conflicting authority. It may be stated, generally, that the suit of a wrongdoer will be rejected when seeking redress for another's having participated with him in the wrong. Thus, a woman who immorally yields to her seducer cannot sue, because she consented to and participated in the wrong whereof she complains. Bish. Non-cont. Law, § 57; Cline v. Templeton, 78 Ky. 550. The author last quoted further says (section 196), that “rape, one of the most aggravated batteries, is, if the woman consents, neither rape, nor even assault," and that "the execution of any unlawful contract places it past annullment and leaves no right of action in either party against the other. So that, though a mutual beating by consenting parties is a wrong against the public, because a breach of the peace, it is not such as between themselves, since neither can complain of that to which he consented." And the learned author, after citing a number of American and English cases to sustain the text, adds: "Such is the distinct and inevitable deduction of the reasoning of the law-applicable, however, in all its consequences, only when the beating was not in the excess of the consent. But we have American cases in which the judges have overlooked the distinction between the civil and criminal remedy, and so have held that one may maintain his civil suit for a battery to which he consented, and in which he participated. Decisions like these, proceeding on a misapprehension, and overlooking established law not brought to the notice of the judge, should not be followed in future cases." To the same effect, Mr. Roscoe says (Rosc. Cr. Ev. 306): "In consequence of the natural desire not to permit a flagrant act of immorality to go unpunished, an attempt has frequently been made to treat that as an assault which is consented to on the part of the person who is the subject of the act. But on examination it will be found that there is no au. thority for such a position." The author cites nu merous authorities supporting the text, but points out that not every act of submission implies consent. Thus, from the mere submission of a child or person of weak mind, consent is not necessarily to be presumed. In the case at bar, however, it would be too much to say that the act of the complainant was not willingly and intentionally done. In Wait, Act. & Def. p. 344, § 11, it is said: "An assault implies force upon one side, and repulsion, or at least want of assault on the other. An assault upon a consenting party would therefore be a legal absurdity." On the other hand, Mr. Cooley, in his work on Torts (page 163), says that "consent is generally a full and perfect shield, when that is complained of as a civil injury which was consented to. A man cannot com plain of a nuisance, the erection of which he concurred in or countenanced. But in case of a breach of the peace it is different. The Stateis wronged by this, and forbids it on public grounds. If men fight, the State will punish them. If one is injured, the law will not listen to an excuse based on a breach of law." The rule of law is therefore clear and unquestionable that consent to an assault is no justification; and one wounded in a duel is said by the learned author to have a cause of action for damages against his adversary, for a consent which the law forbids

cannot be accepted as a legal protection. Some of the cases cited by the author, however, are criminal prosecutions, but others support the text. These authorities seem to be irreconcilable. While we readily appreciate the argument that, so far as the State is concerned, no consent can be pleaded in justification, we have not been able to understand how, in a civil suit, in which the party consenting alone is interested, compensation can be allowed by the law. If both parties to the action are violators of the law, must the mouth of one be closed, and the complaint of the other heard? The parties stand on an exact equality before the law, and, if one wrongfully consented to beat another, the other as wrongfully consented to be beaten. In a late work on this subject it is said: "Harm suffered by consent is not, in general, the basis of a civil action. If the defendant is guilty of no wrong against the plaintiff, except a wrong invited and procured by the plaintiff for the purpose of mak ing it the foundation of an action, it would be most unjust that the procurer of the wrongful act should be permitted to profit by it." 1 Jagg. Torts, p. 199. In Duncan v. Com. (1838), 6 Dana, 295, the defendant in an indictment for an affray pleaded a former conviction under an indictment for an assault and battery, and this court said: "As an affray is a disturbance of the public peace by a fighting with the mutual consent of the combatants, it would be intrinsically improbable that a conviction for an assault and battery-which would not be authorized unless there had been a trespass without the consent of the person injured had been adjudged as a punishment for an act which should be deemed an affray." And while in that case, and the quotation from Roscoe as well, the law in criminal cases was being considered, and the rule as laid down is not now followed, the authority strongly tends to support the principle that at least the party consenting to the injury cannot profit by his wrongful act. The instruction, therefore, asked by the appellants, that if the plaintiff voluntarily went to Louisville for the purpose of having the alleged abortion performed on her, the law was for the defendants-should have been given. Judg. ment reversed for proceedings consistent with this opinion.

SALE OF DEFECTIVE ARTICLES LIABILITY TO PERSONS INJURED.-The Supreme Court of California decides, in Lewis v. Terry, 43 Pac. Rep. 398, that one who knowing an article to be defectively constructed represents it to be safe and sells it to a person who has no knowledge of the defect, is liable in damages to one who without fault on his part, was injured while lawfully using the same. The court says:

The complaint is faulty in not stating directly that the fall of the bed was caused by the latent defect described, but, as the argument of the parties has proceeded on the theory that such was the fact, we may join in that assumption. Schubert v. J. R. Clark Co., 49 Minn. 335, 51 N. W. Rep. 1103. We agree that the action cannot be sustained on the ground of any privity of contract between plaintiff and defendants, for there was none. If a tradesman sells or furnishes for use an article actually unsound and dangerous, but which he believes to be safe, and warrants accordingly, he is not liable for injuries resulting from its defective or unsafe condition to a person who was

neither a party to the contract with him, nor one for whose benefit the contract was made. Coughtry v. Woolen Co., 56 N. Y. 127; Heizer v. Manufacturing Co., 110 Mo. 605, 19 S. W. Rep. 630; Winterbottom v. Wright, 10 Mees. & W. 109 (the leading case); Shear & R. Neg. § 116; 1 Bevan, Neg. p. 60, et seq. But when the seller, as in the case made by the complaint before us, represents the article to be safe for the uses it was designed to serve, when he knows it to be dan. gerous, because of concealed defects, he commits a wrong independent of his contract, and brings himself within the operation of a principle of the law of torts. "It is well settled that a man who delivers an article, which he knows to be dangerous or noxious, to another person, without notice of its nature and qualities, is liable for any injury which may reasonably be contemplated as likely to result, and which does in fact result, therefrom, to that person or any other who is not himself in fault." Wellington v. Oil Co., 104 Mass. 64, per Gray, J.; Schubert v. J. R. Clark Co., 49 Minn. 331, 51 N. W. Rep. 1103; Elkins v. McKean, 79 Pa. St. 493; Shear. & R. Neg. § 117. See Civ. Code, §§ 43, 1708. The liability of the willful wrongdoer in like instances is recognized in several cases cited in support of the judgment. Longmeid v. Holliday, 6 Exch. 765; Heizer v. Manufacturing Co., 110 Mo. 605, 19 S. W. Rep. 630.

The fact insisted upon by respondents that a bed is not ordinarily a dangerous instrumentality is of no moment in this case. If mere non-feasance or perhaps misfeasance were the extent of the wrong charged against defendants, that consideration would be important (Thomas v. Winchester, 6 N. Y. 397); but the fact that such articles are in general not dangerous would seem to enhance the wrong of representing one to be safe for use when known to be really unsafe, for the danger is thus rendered more insidious.

Nor is the further point that the chain of causation implicating defendants in the injury was broken by the intervention of the Appersons, as the persons who furnished the bed immediately to plaintiff, available to defendants on this appeal. To have that effect, it must appear that the Appersons knew of the defect in the structure of the bed, and so, were culpable intervening cause, and this does not appear on the face of the complaint. Pastene v. Adams, 49 Cal. 87; 1 Bevan, Neg. 76. The judgment should be reversed, with instructions to the court below to overrule the demurrer.

WHEN SHOULD THE VERDICT BE SET ASIDE WHERE THE COURT HAS INSTRUCTED THE JURY TO DISREGARD IMPROPER EVIDENCE ADMITTED OVER OBJECTION AND EXCEPTION.

On the trial of actions it frequently happens that improper evidence is admitted over objection and exception taken to the ruling of the court. Afterwards, the court becoming aware of its error, attempts to cure it by instructions to the jury to disregard the improper evidence, or, by withdrawing the evidence in question from the consideration of the jury, when convinced of the error, and afterwards instructing to disregard the im