grave, in such suitable locality as she might select; that the existing monument be erected over such grave, and that the necessary expenses be defrayed out of the fund in court. It appeared that Moses Sherwood was buried on the strip of ground taken in widening the street, in the year 1801; that the tombstone was erected at the time to mark his grave, and quietly stood there over his remains until they were thrust aside by the city corporation to give place for the cartways and foot-walks of Beekman Street as widened.

Mr. Ruggles filed his report, and the cause coming on for hearing at the special term of the supreme court, in April, 1856, the report, as the law of the case, was affirmed. The report contains a statement of the learned referee's investigation of the law of burial, and it is believed to be the most accurate and elaborate collection and statement of the law upon that subject yet published. In commenting upon the question now under consideration, Mr. Ruggles says: "It will be seen that much of the apparent difficulty of this subject. arises from a false and needless assumption in holding that nothing is property that has not a pecuniary value. The real question is not of the disposable, marketable value of a corpse, or its remains, as an article of traffic, but it is of the sacred and inherent right to its custody, in order decently to bury it, and secure its undisturbed repose. The dogma of the English ecclesiastical law that a child has no such claim, no such exclusive power, no peculiar interest in the dead body of its parent, is so utterly inconsistent with every enlightened perception of personal right, so inexpressibly repulsive to every proper, moral sense, that its adoption would be an eternal disgrace to American jurisprudence. The establishment of a right so sacred and precious ought not to need any judicial precedent. Our courts of justice should place it, at once, where it should fundamentally rest forever, on the deepest and most unerring instincts of human nature, and hold it to be a selfevident right of humanity, entitled to legal protection by every consideration of feeling, decency, and Christian duty. The world does not contain a tribunal that would punish a son who should resist, even unto death, any attempt to mutilate his father's corpse, or tear it from the grave for sale or dissection; but where would he find the legal right to resist, except in his peculiar and exclusive interest in the body?"

The final conclusions reached by Mr. Ruggles upon the subject of the legal aspect of the matters referred to him for his

report were: "1. That neither a corpse nor its burial is legally subject, in any way, to ecclesiastical cognizance, nor to sacerdotal power of any kind; 2. That the right to bury a corpse and to preserve its remains is a legal right, which the courts of law will recognize and protect; 3. That such right, in the absence of any testamentary disposition, belongs exclusively to the next of kin; 4. That the right to protect the remains includes the right to preserve them by separate burial, to select the place of sepulture, and to change it at pleasure."

Following the law as announced by Mr. Ruggles in the report above referred to, this court held, in the case of Bogert v. City of Indianapolis, 13 Ind. 134, that the bodies of the dead belong to the surviving relatives, in the order of inheritance, as other property, and that they have the right to the custody and burial of the same.

Our conclusion is, that the custody of the corpse and the right of burial do not belong to the executor or administrator, but to the next of kin, and that the courts of this state possess the power to protect such next of kin in the exercise of such right.

It follows that the court did not err in overruling the demurrer to the complaint in this cause.

The second paragraph of the answer avers that the appellants prepared the corpse named in the complaint for burial on or about the tenth day of December, 1884, and placed the same in a vault wherein were placed the corpses of other children of like age, and in all respects prepared in the same manner for interment; that in consideration therefor the appellees promised and agreed to pay the appellants a fair and reasonable price, which was twenty dollars; that on or about the twenty-ninth day of April, 1885, the appellees notified the appellants that they desired to have their said child interred, when, for the first time, they discovered that said body and corpse had been, by the appellants, shipped by mistake to some point for interment not then remembered by them; that they then and there so notified the appellees, and promised them to immediately find the place of the interment of said body, and without delay return the same to appellees, to which the appellees expressed their satisfaction; that on the fourth day of May, 1885, they learned that said corpse had been shipped to and interred at Ohio, in the state of Pennsylvania, and so notified the appellees, and informed them that they would have said corpse returned by express at their expense, to

wit, the sum of fifty dollars, to which the appellees assented; that immediately thereafter, and before said corpse had time to arrive at the city of Indianapolis, to wit, on the fifth day of May, 1885, the appellees commenced this action; that afterwards, on or about the tenth day of May, 1885, the body of said child was returned to appellants, and was taken by the appellees, and interred; all of which was taken and received by the appellees in full and perfect satisfaction of all wrongs and injuries incident to the mistake made by the appellants in sending said body to the town of Ohio, in place of one of said other like corpses in their said vault; that appellees have failed to pay said sum of twenty dollars, or any part thereof, although the same was past due at the time of the commencement of this suit.

We do not think the court erred in sustaining a demurrer to this answer. It is drawn and proceeds upon the theory that the appellees accepted the acts of the appellants, in the matter of the return of the corpse, in full accord and satisfaction of the cause of action set up in the complaint. The averment found in the answer, at its close, to the effect that a return of the corpse was taken and received by the appellees in full and perfect satisfaction of all wrongs and injuries incident to the mistake, etc., made by the appellants, is the statement of a mere conclusion not warranted by any premises preceding it. It was the duty of the appellants to procure a return of the corpse; and there is no averment in the answer that the appellees agreed with the appellants that they would accept such return in satisfaction of the cause of action upon which the complaint is based.

The only matter urged under the assignment of error, calling in question the action of the court in overruling the motion for a new trial, relates to the instructions in the cause. The court instructed the jury that in assessing the damages they might take into consideration the mental anguish of the appellees, if they suffered any mental anguish on account of the matters set out in the complaint.

In this instruction we do not think the court erred. The case is analogous in principle to the case of Reese v. Western Union Tel. Co., 123 Ind. 294. In that case it was held that the telegraph company was liable for the mental anguish occasioned by its failure to deliver a message in case of extreme illness. The doctrine announced in that case is fully sup

ported by the cases of Western Union Tel. Co. v. Cooper, 71 Tex. 507; 10 Am. St. Rep. 772; Hays v. Houston etc. R. R. Co., 46 Tex. 272; Wadsworth v. Western Union Tel. Co., 86 Tenn. 695; 6 Am. St. Rep. 864; Beasley v. Western Union Tel. Co., 39 Fed. Rep. 181. The cases rest upon the reasonable doctrine that where a person contracts, upon a sufficient consideration, to do a particular thing, the failure to do which may result in anguish and distress of mind on the part of the other contracting party, he is presumed to have contracted with reference to the payment of damages of that character in the event such damages accrue by reason of a breach of the contract on his part. The case of Wadsworth v. Western Union Tel. Co., 86 Tenn. 695, 6 Am. St. Rep. 864, is, in some of its features, much like the case now before us. In that case the following telegram was sent to Mrs. Wadsworth, the sister of the deceased:

"MEMPHIS, October 3, 1887.

"To MRS. T. J. WADSWORTH, Byhalia, Miss. "Mr. Howell died this morning. Advise us what to do. Will look for some one on morning train.

"R. C. WALDEN."

The company negligently failed to deliver this telegram. In a suit by Mrs. Wadsworth against the telegraph company, in which she sought to recover damages on account of injury to her feelings in being deprived of the privilege of being present to take charge of the body and to superintend its burial, the learned judge who delivered the opinion of the court said: "To hold that the defendant is not liable in this case for the wrong and injury done to the feelings and affections of Mrs. Wadsworth by its default would be to disregard the purpose of the telegrams altogether, and to violate that rule of law which authorizes a recovery of damages appropriate to the objects of the contract broken."

When the appellants contracted with the appellees to safely keep the body of their daughter until such time as they should desire to inter the same, they did so with a knowledge of the fact that a failure on their part to comply with the terms of such contract would result in injury to the feelings of the appellees, and they must therefore be held to have contracted with reference to damages of that character, in the event of a breach of the contract on their part.

After a careful examination of all the questions presented

AM. ST. REP., VOL. XXI.-17

by the record in this cause, we find no error for which the judgment should be reversed.

Judgment affirmed.

PERSONAL PROPERTY BODIES OF DEAD Persons.

The general rule is, that the dead bodies of persons are not subjects of property: State v. Doepke, 68 Mo. 208; 30 Am. Rep. 785; Griffith v. Charlotte etc. R. R. Co., 23 S. C. 250; 55 Am. Rep. 1. Yet the relatives of a deceased have certain rights with respect to his body which the law recognizes: Pierce v. Swan Point Cemetery, 10 R. I. 227; 14 Am. Rep. 667. Compare Weld v. Walker, 130 Mass. 422; 39 Am. Rep. 465, and note.

DAMAGES MENTAL ANGUISH AND SUFFERING. As to when mental suffering may be considered as an element of damages for the breach of a contract, see Western Union Tel. Co. v. Broesche, 72 Tex. 654; 13 Am. St. Rep. 843, and note. Compare note to Austin v. Wilson, 50 Am. Dec. 767775.

f

BEDFORD BANK v. ACOAM.

[125 INDIANA, 581.]

Where a

BANK MAY PAY PROMISSORY NOTE OF ITS DEPOSITOR WHEN. promissory note, negotiable and payable at a bank, is sent to said bank properly indorsed for collection, it has the right to pay the note out of any general funds of the maker on deposit with it, and charge his account with the amount. One who has drawn such a note cannot be heard to say, after his banker has paid a just debt for which he had given a note, to which the maker claims no defense, that the payment was wholly voluntary and unauthorized. In such a case, the banker who has paid the note is entitled to hold it as the equitable owner or purchaser, and is entitled to set it off in a suit to recover a balance due the depositor on general account.

ACTION to recover the balance of a deposit. The opinion. states the case.

J. W. Buskirk, M. F. Dunn, and G. G. Dunn, for the ap pellant.

J. Giles, for the appellee.

MITCHELL, J. On the eighth day of May, 1888, John W. Acoam had a sum of money on general deposit in the Bedford Bank, in Bedford, Indiana. The bank on that day received a note, indorsed to it for collection, payable by the depositor to Stone, Sons, & Co., at the Bedford Bank. The bank remitted the amount due on the note to its correspondent, and charged the account of its depositor with the sum remitted. This was done without notice to the depositor, or other authority, except such as the law implies from the fact that the note was nego