Wabash, St. Louis & Pac. Ry. Co. v. Knox, 110 U.S. 304

The judgment in this case was for $5,237.15, but the iecord shows in many ways that of this amount $727.42 was admitted to be due. A formal tender of that sum was made on the 26th of February, 1883, and the money deposited in court for Knox, the plaintiff, where it remained until the 14th of March, nine days after the judgment was rendered, when it was withdrawn by the railroad company, without prejudice, on the order of the court and with the consent and agreement of Knox. The bill of exceptions also shows an admitted liability of the company for the amount of the tender. The case is, therefore, in all material respects, like that of Tintsma/n n . National Bank, 100 U. S. 6, where the writ was dismissed, although the p. 305judgment was for $8,233.59, because, by an agreeed statement of facts in the record, it appeared that the defendant admitted he owed $5,099.59 of the amount recovered. To the same effect is Jenness v. Citizens' National Bank of Rome, ante, 52. The amount in dispute here is no more than was in dispute below, and that was less than $5,000.

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 a 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 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 ot 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 warranty, and that the statement was the representation of the agent of the company, and not that of the p. 307assured. 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 9th, 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 6 per cent. was computed on the judgment from its entry to November 22d, 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 p. 308satisfaction of this judgment in full, this 15th day of December, 1879. C. S. Jeffries, adm’r, &c., by Joseph S. Laurie, his att’y.” 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 plaintiff 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 once notified Laurie and the defendant that the coni' promise 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 ns, 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 afterwards 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 p. 309plaintiff 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.

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. Harper, 66 Mo. 51. The attorneys did not agree to 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, anything 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. p. 310Perry on Trusts, § 482; Overfield v. Bullitt, 1 Mo. 537. The authority given to him by statute, Wag. Stat., vol. 1, p. 87, sec. 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 1st, 1879, Rev. Stat, of Missouri, of 1879, vol. 1, p. 37, sec. 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 approbation. 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 ^2. 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.

This is an action on the case, brought by Timothy Gruaz against Rudolph Bircher, to recover damages for the speaking and publishing of false, malicious, scandalous and defamatory words, charging the plaintiff with being a thief, and with having stolen the money of the defendant, meaning the crime of larceny. The suit was commenced in a State court of Illinois, and was removed by the defendant into the Circuit Court of the United States for the Southern District of Illinois. At the trial before a jury a verdict was rendered for the plaintiff, June 6th, 1879, for $6,000 damages. On the next day the defendant filed a motion for a new trial. On the 14th of June the defendant died, on the 12th of July an order abating the case was moved for, on behalf of the defendant, and on the 16th of August the court overruled the motion for a new trial and the motion for an order of abatement, and entered a judgment for the plaintiff, against Bircher, for $6,000 and costs, as of June p. 3127th, 1879. The order for judgment recited that the hearing by the court of the motion for a new trial was, when it was filed, postponed to a then future and convenient day of the same term, and that the defendant died pending the hearing of the motion. Leave was given to the executor of the defendant to prepare a bill of exceptions and to take a writ of error. The bill of exceptions ‘being signed, it was filed by the executor, and the writ of error was issued. Various errors are assigned, and among them that the Circuit Court did not grant the motion to abate the suit, and that it rendered a judgment against Bircher after his death. But it is unnecessary to pass on those questions, because we are of opinion that the judgment must be reversed for another error committed at the trial.

“ Q. I will ask you if you had any conversation with Doctor Bircher with regard to Gruaz, and, if so, when was it ? Counsel for defence asked witness if at that time he was occupying the same position he now holds. A. Yes, sir. Q. It was communicated to you while you held that position and were acting in that capacity, whatever was communicated to you by Bircher ? A. Yes, sir. (Defendant’s counsel object to the witness testifying to matters disclose^ to him by the defendant under the circumstances stated, on the ground that such communications are to be treated as privileged.) The Court. I will ask the witness if he regarded it professionally as a privileged communication? A. I had never met defendant before, he was introduced to me by a citizen of our place, and he informed me that he wanted to talk with me with regard to a matter he wanted to bring before the grand jury. (Objected to.) The Court. I will allow the witness to state what the doctor said on that occasion. Of course, if he made the communication to the witness in good faith, there would be no malice about it, and I shall instruct the jury to p. 313disregard it. The objection is overruled. To which ruling of the court the defendant at the time excepted. A. As I stated, I had at that time no acquaintance with defendant whatever. He inquired for the State’s attorney, and was introduced to me, and he spoke of his affairs. He said he wanted to bring a matter before the grand jury in regard to Mr. Gruaz. I talked with him in regard to the nature of the matter, and he talked pretty freely in regard to it, and I directed him to the grand jury room. He said a good many things. He was evidently in earnest at the time, expressed himself very freely in regard to him. I would not like to swear to the exact words used, or that anybody used at the time. I can give the substance of what he said, I suppose. He wanted to prosecute Gruaz for stealing, was the amount of it. I recollect this : he charged him with having stolen his money, and I asked him how, and he told me how it had been done. Gruaz was his agent and handled his funds, rented his farms, and had failed to account for a large amount of money, he told me, and he charged him in this conversation with having stolen his money, and he said he wanted to know if there was any law in this State to prosecute a man for that. I have no objection to state any words. I remember his making the charge that he had stolen his money, but I can’t swear that the word ‘ thief ’ was used at that time; that it was in substance, undoubtedly. My impression is that this was the March term, 1878, of the Circuit Court of Madison County, either that or October term, 1877 ; my recollection and decided impression is that it was the spring term, 1878. Dr. Bircher went into the grand jury room and gave his statement to the grand jury. He was anxious, of course, to have the indictment found, and he evidently believed or so expressed himself. Counsel for defendant objected to witness stating his opinion about what defendant evidently believed. The Court. He said he went before the grand jury, and said he seemed to be in earnest in his movements, but he didn’t say what took place before the grand jury. Don’t know, I suppose. Witness. No, I don’t know. Cross-examination. Major Prickett introduced Bircher to me ; never saw him before in my life. I was certain he came to see me as prosecuting attorney, in good faith. That was his business, as he stated it to me. After he made his statement to me I advised him to go before the grand jury ; directed him to their room. He went there by my advice. Hold on—I don’t p. 314say that; I advised him that he had a good case. He came to me and I showed him where the grand jury room was. He stated his case to me as State’s attorney. I then directed him where to go, and said I should prosecute it as vigorously as possible, if the indictment was found. In regard to the advice I gave him, I rather encouraged him to drop the thing; I told him he better sue Mr. Gruaz first, and see if he couldn’t get judgment against him, and so put it in a better shape to prosecute him. He stated his. case, and I thought from his statement that he would have few, if any, witnesses besides himself, and that it would be doubtful, however honestly he might believe that he had cause, it would be doubtful whether the jury would bring a bill; so I advised him to bring a civil suit ; but, said I, you are here, and you mustn’t think hardly of me if the grand jury don’t find a bill; and I directed him to the grand jury room.”

We are of opinion that what was said by Bircher to Mr. Cook, was an absolutely privileged communication. It was said to Mr. Cook while he was State’s attorney, or prosecutor of crimes, for the county, and while he was acting in that capacity. Bircher inquired for the State’s attorney, and was introduced to him, and stated to him that he wanted to talk with him about a matter he wanted to bring before the grand jury in regard to Gruaz. He laid the matter before Mr. Cook, and charged Gruaz with having stolen his money, and was asked how, and stated p. 315how, and inquired of Mr. Cook if there was any law in Illinois by which a man could be prosecuted for that. The grand jury was* then in session, and Mr. Cook advised Bircher that he had a good case, and directed him to the grand jury room, and Bircher went before the grand jury. If all this had taken place between Bircher and an attorney consulted by him who did not hold the public position which Mr. Cook did, clearly, the communication would have been privileged, and not to be disclosed against the objection of Bircher. Under the circumstances shown, Mr. Cook was the professional adviser of Bircher, consulted by him, on a statement of his case, to learn his opinion as to whether there was ground in fact and in law for making an attempt to procure an indictment against Gruaz. The fact that Mr. Cook held the position of public prosecutor, and was not to be paid by Bircher for information or advice, did not destroy the relation which the law established between them. It made that relation more sacred, on the ground of public policy. The avenue to the grand jury should always be free and unobstructed. Bircher might have gone directly before it, without consulting with Mr. Cook, but, if he chose to consult him, instead of a private counsel, there was great propriety in his doing so. Any person who desires to pursue the same course should not be deterred by the fear of having what he may say in the confidence of a consultation with a professional adviser, supposed to be the best qualified for the purpose, disclosed afterwards in a civil suit, against his objection. Oliver v. Pate, 43 Ind. 132. By the statute of Illinois in force at the time of this occurrence, it was made the duty of each State’s attorney to “commence and prosecute” all criminal actions, suits, indictments, and prosecutions, in any court of record in his county, m which the people of the State or county might be concerned. Rev. Stat, of 1874, chap. 14, § 5, subd. 1. Under this provision n was the province and the privilege of any person who knew of facts tending to show the commission of a crime, to lay those facts before the public officer whose duty it was to commence a prosecution for the crime. Public policy will protect all such communications, absolutely, and without reference to the motive w intent of the informer or the question of probable cause; the p. 316ground being, that greater mischief will probably result from requiring or permitting them to be disclosed than from wholly rejecting them. Mr. Cook learned from Bircher the things to which he testified because he occupied the position of public prosecuting officer, and because he was acting at the time as the legal adviser of Bircher in respect to the matter in question which Bircher was laying before him. The free and unembarrassed administration of justice in respect to the criminal law, in which the public is concerned, is involved in a case like the present, in addition to the considerations which ordinarily apply in communications from client to counsel in matters of purely private concern. Bircher made his communication to Mr. Cook for the purpose of obtaining professional advice as to his right, and that of the public through him, to have a criminal prosecution commenced by Mr. Cook, by the intervention of the grand jury, against Gruaz.

But there is another view of the subject. The matter concerned the administration of penal justice, and the principle of public safety justifies and demands the rule of exclusion. In Worthington n . Scribner, 109 Mass. 487, an action for maliciously and falsely representing to the Treasury Department of the United States that the plaintiff was intending to defraud the revenue, it was held that the defendant could not be compelled to answer whether he did not give to the department information of supposed or alleged frauds on the revenue contemplated by the plaintiff. The principle laid down in that case was, that it is the duty of every citizen to communicate to his government any information which he has of the commission of an offence against its laws; and that a court of justice will not compel or allow such information to be disclosed, either by the subordinate officer to whom it is given, by the informer himself, or by any .other person, without the permission of the government, the evidence being excluded not for the protection of the witness or of the party in the particular case, but upon general grounds of public policy, because of the confidential nature of such communications. The authorities are collected and reviewed in that case. The case of Dawkins v. Rokeby, L. R. 8 Q. B. 255, there cited, was affirmed by the House of Lords, p. 317L. R. 7 H. L. 744. See also, 1 Greenleaf on Evidence, § 250; Black v. Holmes, 1 Fox & Smith, 28.

Malcolm D. Jones, of whom Francis A. Jones, the appellee, is executor, in his lifetime was executor of the last will of Drury Corker, deceased, and testamentary guardian of the person and estate of the testator’s son, Ernest D. Corker, the appellant, one of the devisees, then a minor, who arrived at age since filing the present bill. While acting as such, on July 24th, 1863, Malcolm D. Jones, as guardian, purchased a tract of land known as the Gilstrop and Watson place, part of the estate of Drury Corker, from the trustees of Mrs. S. C. Hart, a daughter of the testator, to whom he had devised it, with power to sell. The consideration paid was $15,600 in Confederate money, which was advanced by Malcolm D. Jones from his own funds. The conveyance was to him as guardian of the appellant, the latter being charged in account by the guardian with the amount of the advance. In 1867, while the appellant was still an infant about eleven years of age, and living with his mother, a bill in equity was filed in the Superior Court of Burke County, where they resided, a court of general jurisdiction at law and in equity, in the name of the appellant, suing by his mother and next friend, to which Malcolm D. Jones was made defendant, praying for a rescission of the transaction as between the guardian and ward, so that the former should take the land and the latter be relieved from the payment of the consideration. The pleadings in that case are not exhibited in the present record, as it is stated, because they have been lost or destroyed ; but the matter was submitted to a jury, who found that “ it is to the interest of Ernest D-Corker, the minor, under his circumstances, that said purchase be rescinded and deed be cancelled and set aside as to said Ernest D., leaving it to stand as against the makers and in favor of said Malcolm D. individually; and that, if necessary, said Ernest D. make and deliver a proper conveyance of said land to said Malcolm D.” And upon this verdict, on January 1st, 1868, it was by the court ordered and decreed “ that sail deed be, and is hereby, set aside and cancelled as to said Ernest p. 319D. only, and that it stand good against the makers thereof, and for the use and benefit of said Malcolm D. individually, and said Ernest D. make any, all necessary, and proper conveyances of the land referred to, to said Malcolm D.; that said Malcolm D. also pay one-half of the costs of this proceeding, and said Ernest D. the other half thereof.”

It would be difficult under this section, or any others to be found relating to the subject, to discover any authority for the purchase by Jones, the guardian, of the real estate in controversy for his ward, on credit, advancing the money as a loan or that purpose; and the question whether it was a transaction p. 320that should stand or be cancelled, as between guardian and ward, was not one arising in the ordinary course of administration for settlement as a mere matter of account in the Court of Ordinary, but, as we think, was one more appropriately dealt with in the more formal procedure of a court of general jurisdiction with equity powers. The question is not one relating to the sale or disposition of any part of the ward’s estate which had come under the control of the guardian, but was whether, under the circumstances, the purchase made by the guardian should be treated as made for the benefit of his ward, or whether its burdens and risk should be borne by him individually. It was peculiarly a case for cognizance in equity, and the Superior Court of Burke County, we think, had jurisdiction to make the decree directing the title to remain in Malcolm D. Jones for his own use.