BERRY V. DE WITT.
sation than he had already received. He has not paid the costs. Treating the present application as though it were made by the client. the plaintiff in the suit, instead of' the master. in whose behalf it is really made, it is one for the· exercise of the summary jurisdiction possessed by courts over attorneys as their officers by attachment, when the professional conduct of the attorney in a cause pending before the court is involved. The statute (section 725, Rev. St.) has not restricted the power of the court to punish for contempt any officer of the court in his official transactions, or his disobedience of any lawful order. It was entirely proper to order the attorney to pay the costs which he had unnecessarily imposed upon his client, and a decent regard for the dignity of the court requires that obedience to the order be compelled. If the respondent had alleged his inability to comply with the terms of the order, such an excuse would be considered; but, in the absence of such an excuse, the case is one where the remedy by attachment should be allowed. The statutes prohibiting imprisonment for debt have no application to such a case. The courts have always allowed the summary remedy of an attachment to compel an attorney to observe the duties inQident to his professional relations towards his clients, and towards the other officers of the court, and in this state it is even held that it is not essential to the exercise of this summary remedy that the transaction should arise out of a suit in the court, or in reference to any legal proceedings. In 'l'e Dakin, 4 Hill, 42. Bawling Green Sav. Bank v. Todd, 52 N. Y. 489; In re H., 87 N. Y. 521. The affidavits on the part of the respondent indicate that he has not been guilty of any intentional disobedience of the order, but rather that he has acted upon a misconception of his rights and duties. An attachment will be issued, unless within 15 days he pays the sum heretofore ordered to be paid, as taxed by the COU1·t.
'D. DE WITT
(Oircuit Oourt, S. D. New York. June 16,1886.)
1. NEW TRIAL-JURy-PREJUDICE-ExPRESSIONS OF OPINION. That some of the jury indicated, by their language and manner in the jury· box. during the progress of the trial, that their minds were opposed to,the defendant's case, is not a ground for a new trial, when there is no adeqnate reason to suppose that any juryman was not impartial when the trial commenced, and when no means were taken by the plaintiff to cause a too hasty or prejudiced decision. 2. SAME-MiSCONDUCT-WAIVER. Misconduct of a juror, in conversing with one of the plaintiffs during. the trial. is waived. if known to the defendant at the time of its occurrence, and not made subject of a motion to the court.
Motion for New Trial.
Henr.1J E. Tremain, for the motion. John E. Parsons, against the motion.
SHIPMAN, J. This is a motion by the defendants for a new trial. The questions of law arising upon the bill of exceptions were not argued by the defendants' counsel at any length. I shall not, therefore, enter into a written examination of these questions, but leave them for the consideration of the appellate court. The defendants' counsel relied, before me, for a new trial, upon the alleged prejudice and the manifested antagonism of some of the jurors against the defendants' case. That some of the jury did indicate, by their language and manner in the jury-box during the progress of the trial, that their minds were opposed to the defendants' case, is true; but I do not think that this is a ground for a new trial, when there is no adequate reason to suppose that any juryman was not impartial when the trial commenced, and when no imp.roper means were taken by the plaintiff to cause a too hasty or a prejudiced decision. The alleged misconduct of a juror in conversing with one of the plaintiffs during the 'trial, and expressing an opinion upon the case, is strongly denied by the person with whom he is said· to have conversed. If the allegation was true, the conversation was overheard and was understood by one of the defendants' counsel, and was not bronght to the notice of the court. Such misconduct of a juror during the trial, if known to the party at the time of its occurrence, and 110t made the subject of a motion to the court, is waived. A party cannot know, during the trial, a fatal objection arising from the misconduct of a juror upon the trial, and keep silence, and take advantage of it in the event of an adverse verdict. He is not permitted to "speculate upon the chances of a verdict." State v. 7''Uller, 34: Conn, 280. The motion for a new trial is denied.
& N. R. Co. 1
(Circuit Court, E. D. Missouri. March 29, 1886.)
It is the duty of railroad companies to use the best mechanical appliances, and to exercise the highest degree of prudence and skill, to determine that all their appliances are safe for purposes of transportation. and in case an accident results from a failure to use such appliances, or to exercise the proper degree of care and skill, they are liable in damages. s
Reported by Benj. F. Rex, Esq., of the St. Louis bar. See note at end of case.
& N. R. CO.
SA)[E-R.UI,ROAD NOT AN INSURER.
A railroad company is not an insurer, however. and where an accident happens in conseq nence of a latent defect in a rail or other appliance. which could not have been discovered by any degree of intelligence, prudence, or skill, it is not liable. Where a passenger meets with an inj ury in consequence of the negligence of a railroad company, he is entitled to compensation therefor, includins- all expenditures made in consequence of the injury. together with loss of tIme, and proper allowance for any special mental or physical suffering; and in assessing damages, the jury should consider whether the injury is permanent or tern porary.
At Law. Suit for damages. The plaintiff states in his petition that, while being transported by the defendant over its road, car in which he was riding was thrown from the track, through the defendant's negligence, and that he J;eceived a serious bodily injury, for which he askfl damages. Answer denying negligence, and alleging that the car on which the plaintiff was riding when hurt was thrown from the track by a rail broken by the preceding cars of the train, and that the rail broke because of a concealed defect, which could not have been discovered by inspection. The evidence was conflicting. Nathan Frank, for plaintiff. Henry W. Bond, for defendant. TREAT, J., (charging jury orally.) The principles of law governing cases of this character are very few and very simple. A passenger on a railroad train has a right to suppose that all the appliances connected with his transportation are such as the highest degree of human skill and prudence could furnish. If he mMts with .an injury through the fault of the railroad company, he is entitled to compensation therefor, including all the expenditures by him made in consequence of said injury, together with his loss of time, and a proper allowance for any special suffering to which he may have been put, mentally or physically; and also the jury will take into consideration whether the injury is permanent or temporary. Now, in this case, it seems-and it is for you to determine, gentlemen, in the light ·of the testimony-that the injury was caused by a defective rail, while this train on which the plaintiff was a passenger was running .at such rates of speed as has been presented to you, when this mil was hit. It is the duty of a railroad company to exercise the highest degree of prudence and skill to determine that everytlling is safe for transportation. If an accident happens in consequence of a failure to exercise that degree of skill and prudence, the company is responsible for what may happen. On the other hand, a railroad company, like an individual, can do nothing more than to exercise all tbeskill and diligence known for the purposes of its employment, and having done 80, if there is a latent defect,-a concealed defect,-which that degree of intelligence, prudence, or skill cannot detect, it is not responsible for what may happen. In other words, a railroad company
is not an insurer, and while it is not an insurer that the passengers shall be transported with perfect safety, it is bound, on the other hand, to exercise all of the skill and prudence known to the highest order of intelligence connected with such matters. If this is done, and an accident occurs, it hRS rlischarged its duty. It is unfortunate that some one should BULer, bUG the measure of duty having Iwen discharged as thus stated, by the ralroad company, the 108s must fall where it unfortunately has fallen. Consequently, this case has seemed to the court all the way through to turn on one question, mainly, viz., the character of the rail. Was it a rail not fit to be used, and could the company have known it, for the purposes for which it was used. If it could, the company was liable for the injury that was caused by the use of such an improper rail. Second, if itwere originallJfit.for the purposes used, and through some cause aI' other it had become defective, and the company could have detected that defect, and the injury was caused, still the company is liable. I put a great many questions, because it did not seem clear to my mind,-though I am not to determine that, and the jury are to determine it,-as to what was the character of the rail itself, and what were its connections with the adjoining rails. Ordinarily, as stated by the witnesses here, under our modern can· trivances for safety, rails on a track are not only fastened by what are known as "chairs" and "ties," but also by fish-plates. I endeavored to ascertain, if possible, the condition of these fish-plates, so that after the accident it might be determined whether there were fish-plates at either end of this short rail. It is for you to say with regard to' that. It does not become the court to comment On the testimony. It must suffice for the purposes of this case, so far as the court is concerned, that this accident happened. You have heard the testimony as to how it happened. You have heard the effect upon this rail, broken into sections of several pieces; and if that rail was fit for the work, and the exercise of the highest degree of care and attention on the part of this railroad would not have enabled it to detect that it was unfit, as it turned out to be, then the company is not liable. If it was unfit, and they knew it, or by extreme care and skill could have found that it was unfit when the injury occurred, then the company is liable. So, practically, the question is, was this a latent defect, which could not be detected by the company? If it, was, the company is not liable; if it were otherwise, then the company is liable. Take the case gentlemen. Verdict for the defendant.
It is the duty of a carrier of passcngers to exercise extraordinary care and caution. Raymond v. Burlington, C. R. & N. Ry. Co., (Iowa,) 21 N. W. Rep. 495. One whose presence on a railway train is not wrongful, may recover for injuries
BANK V. AMES.
caused by the ne;;ligence of the carrier, lIlthough he Wlll! not a "passenger," in the or· dinary sense of the term. Gradin v. St. Paul & D. Ry. Co., (Minn.) 14 N. W. Rep. 881. A person who travels 011 a railroad train on the ticket ofanother. contrary to the rule of the company printed on the ticket, and without the consent of the company's agent, perpetrate8 a fraud, and in case of his rec\Jiving injuries during the trip the law of common carriers cannot be invoked to make the company responsible. Way v. Chicago, R I. & P. R. Co., (Iowa,) 19 N. W. Rep. 828. The right which a passenger by rail way hlll! to be carried safdy does not depend on his having made a contract for carriage; the fact of his beinl( there cr!.'ates a duty on the part of the company to carry him safely. Austin v.Great Western nv.co., 15 Wkly. Rep. 863; Waterbury v. New Yurk Cent. & H. R R Co., 17 Fed. Rep. 671'; 8tory, BaHm. 592 et seq.; Thomp. Carr. 20 et seq. The railroad company is bound to make reasonable provisions for the safety of all passengers; and for a failure of this duty the passenger lUay maintain an action against It as for pure turt. Berring!.'r v. Great Eastern Ry. CO.,4 C. P. Div.163; Foulkes v. Metropolitan Dist. Ry. Co., Id. 267; Johnson v. West Chester, etc., R Co., 70 Pa. St. 357. It is said that it has always been the law that a carrier who inflicted an injury on a passenger may be sned in tort. Ansell v. Waterhouse, 2 Chit. 1; 8. C. 6 Maule & S. 385 j Bretherton v. Wood, 6 J. B. )loore, 141; 8. C. 3 Brod. & B. 54; Bank of Orange Co. v. Brown, 9 Wend. 85; M'Call v. Forsyth, 4 Watts & 8.179; Pt'nnsylvania R. Co. v. Peoples, 31 Ohio 8t. 537; Heim v. M'l1anghan, 32 Miss. 17; Cregin v. Bro klyn, etc., R. Co., 75 N. Y. 192; 8alton8ta11 v. Stockton, Tauey, 11; Frink v. Potter, 17 Ill. 400; New Orleans, etc., RCo.v. Hurst, 36 Miss. 660; Am8::lv. Union Ry. Co., 117 Mass. 541. It is !laid that any negligence on the part ofa carrier using so dangerous an agency·lUI steam is culpable or actionable, (The New World v. King, 16 How. 469,) even though the person be carried gratuitously; for the principle applicable to such cases, it has been well said. is: "If a ilIan gratuitionsly untertakes to do a thing to the best of his skill, when his situation or profession is such as t.o imply skill. the omission of that skill is impnted to him as gross negligence." 8hiells v. Blackbume, 1 H. Bi. 158; Wilson v. Brett, 11 Mees. & W.113j Noltonv. Western R. Corp.,15 N. Y.444; Siegristv. Arnot, 10 Mo. App. 198.
ANGLO· CALIFORNIAN BANK
(Oircuit Oourt, D. Nebraska. June 7,1886.)
INSANE PERSONS-ACT OF LUNATIC-EsTOPPEL.
One who is disabled by want of mental capacity to act. cannot be estopped to deny that he has acted. An estoppel creates no power, and while, in favor of a bona fide purchaser of negotiable paper, inquiry is denied as to equities between prior parties. yet such protection does not cut off inquiry into the contractual capacity of those parties. '1'he indorsement of a certificate of deposit by the insane perBon, in whose favor it was drawn, carries no title, even to an mnocent purchaser.
2. SAME-CERTIFICATE OF DEPOSIT-INDORSEMENT BY LUNATIC-INNOCENT PuR-
J. W. Savage and Dwight Hull, for plaintiff. J. L.Webster, for defendant.
BREWER, J. This was an action on a certificate of deposit. It was tried by a jury, and a special verdict returned. The plaintiff claims as a bonafide purchaser of the paper. The bank, maker of the cer· tificate, brought the money into court, and left the issues to be .tried between the plaintiff and the defendant, Ames, the payee and indorser -of the certificate. The jury found ·that Ames at tbe time of -dorsement was of unsound mind, and did not know what he was doing;
the indorsement was obtained by fraud ant'l deception; and that Ames received no consideration therefor. Of these facts the bank was ignorant when it purchased. The question, therefore, is between a lunatic and an innocent purchaser of his paper. How far the contract of a lunatic, not as yet under guardianship, can be enforced, may not be clearly settled. When full consideration has been given, and the contract made in good faith, the mental infirmity has often been disregarded. and th" contract enforced. Yet, obviously, on principle, any promise of such a person lacks the essential element of a contract, to-wit, assent. As said by the supreme court in Dexter v. Hall, 15 Wall. 20:
"Looking at the subject in the light of reason, itis difficult to perceive how one incapable of understanding or acting in the ordinary affairs of life can make an instrument the efficacy of which consists in the fact that it expresses his intention, or, more properly, his mental conclusions. 'rhe fundamental. idea of a contract is that it requires the assent of two minds, but a lunatic, or a person non compos mentis, has nothing which the law recognizes as a mind, and it would seem, therefore, on principle, that he cannot make a contract whieh may have any efficacy as such."
One great difficulty in this class of cases lies in our lack of ability to distinguish difference of mental condition and the paucity of language to accurately describe such differences. Between him whose mental faculties seem all unbalanced,-in whose chambers of thought chaos reigns supreme, "confusion worse confounded,"-and him but a single wheel of whose mental mechanism is out of gear, there is a world-wide difference. and yet both are classed as persons of unsound mind. We determine one's mental condition only from his words and acts; yet often how difficult it is to look through the outer life to the inner soul? 'i'be craziest reason correctly-speak and act sensibly-upon some subjects; while there are others so many of whose mental processes are rational, and so few unbalanced and in confusion, that we hesitate to declare them incapable of self-control, and irresponsible for their actions and contracts. Is it strange, in respect to such a person, that when every thing seems to have been fairly done, and a full consideration passed, the courts have spoken lightly of the mental infirmities, and upheld the contract? On the other hand, when gros!! inj ustice has been done,-especially when the mbntal incapacity is obvious and pronounced,-the inclination has been to denounce tbf\ wrong, and protect the unfortunate imbecile from the rapacity of the willful spoiler. Such is this case. The defendant was of unsound mind. He received nothing. He knew not what he was doing. His contract was obtained by fraud and deception. There is not a single feature which would give the slightest ex:· cuse for upholding the transaction as between the immediate parties. Does the plaintiff, as a bonafide purchaser, occupy any better posi. tion than the wrong-doer from whom it purchased? Doubtless, it is entitled to all the protection given to such a purchaser of negotiable paper; but such protection does not extend to an indorsement like this.
ANGLO-CALIFORNIAN BANK V. AMES.
There was no valid contract of indorsement created by defendant's signature on the back of the paper. It was no better than a signa· ture written in a state of somnambulism, or even than a forgery. No negligence is imputable, for one who is incapable of prudence cannot be guilty of negligence; nor can there be an estoppel. He who is legally disabled to act, cannot be estopped from denying that he has acted. An estoppel creates no power; and while, in favor of a bonafide purchaser, inquiry is denied as to equities between prior parties, yet such protection does not cut off inquiry into the contractual capacity of those parties. Such, at least, is the better doctrine, although it must be conceded that there are authorities to thfl contrary, especially in the English courts. The case of Wirebach v. First Nat. Bank, !)7 Pa, St. 1)43. is a late case, in which this subject received consideration. In it we find thi8 language:
"The question now presented is, will an action lie on the accommodation indorsement of a promissory note by a lunatic? If the detl'rmination of this was not made, it was clearly indicated, in 1IIoore V. Hershey. 9 Norris, 196. There tha action was by an indorsee against the maker of a promissory nute, and evidence was offered to prove that the maker had received no consideration for the note; which fact the plaintiff had admitted in conversation, proof having been made that the maker was insane. But the offer was rejected, the court below ruling that as the note in suit was commercial papE'r, and the plaintiff a holder for value. the consideration could not be inquired into. This was held to be error. PAXSON, J., said: '" We place our ruling upon the broad ground that the principle of com merciallaw aboye referred to does not apply to commercial paper made by madmen. * * * The true rule applicable to such cases is that while the purchaser of a promissory note is not bound to inquire into its consideration, he is affected by the status of the maker, as in the case of a married woman or a minor. In neither of these cases can he recover against the maker. In the case of a lunatic, however, he may recover, provided he had 110 knowledge of the lunacy, and the note was obtained without fraud, and upon a proper r:lonsideration. There must be a limit to the civil responsibility of persons qf unsound mind: otherwise, their property would be at the mercy of unscrupulous and designing men. If the holder could recover against one who was insane when he indorsed or made the note without consideration therefor, no wider door could be opened for the swindler to despoil such helpless persons of their estates. An infant who makes or indorses a note may, by his representative, plead his infancy as a complete defense. In like manner a lunatic may plead insanity and want of consideration. The consideration respects himself, not the holder who may have given value to the illdorseI. If the fact that the holder had paid value were enough, the lunatic could not defend for fraud upon him, or for want of consideration. Then an innocent holder could recover, though the jUdgment would sweep away the lunatic's entire estate, and he had not been benefited a farthing; nor would a nominal sum be sufficient. It is said that the law protects those who cannot prl>tect themselves; but it would be sorry protection if one holding a valid note against a helpless man for four thousand dollars, could get it renewed for ten thousand dollars, and recover the full amount of the renewal note.'"
McClain v. Davis, 77 Ind. 419, was a case where a promissory note was obtained from an insane man to cure him of a disease, as in
case at bar. The note came into the hands of a bank, for value, without notice. The court say:
"There was nothing received in consideration of the contract under consideration of which it can be said that restitution should be made before a disaffirmance should be and it is no objection that the note had passed. before maturity, into the hands of an indorsee. Commercial paper is not an exception to the rule which permits a disaffirmance by anyone who was of unsound mind at the time of becoming a 'Party thereto. The purchaser of such paper takes with constructive notice of all legal disabilities of the party,-such as infancy, coverture, and unsoundness of mind. 1 Pars. Notes & Bills. pp. 149, 150; Edw. Bills, pp. 63-69."
See, also, 1 Daniel, Neg. lnst. § 210, in which the author says:
"No matter how perfect the note may be in form. it would be void in the hands of every person, however innocent, as against the imbecileor lunatic." See. also. Burke v · .Allen, 29 N. H. 106.
I think judgment should be entered on the special verdict in favor of the defendant.
UNITEV STATES V. DOHERTY.
(District Oourt, 8. D. N61.D York. June 8, 1886.) 1.
STATUTES, CoNSTRUCTION OF-DISCRETIONARY POWER.
Under statutes conferring a general discretionary power without qualitlcation, the exercise of the officer's discretion is limited, by legal construction, to the evident purposes of the act, and to what is known as a sound and legal discretion, excluding all arbitrary. capricious, inquisitorial, and oppressive proceedings. Though the acts of special tribunals cannot be in general reviewed, as provided by law, they may be examined collaterally as respects their junsdiction. and as regards acts in excess of power; and as to such acts their proceedings will be held unauthorized and void. REV ST. §§ 2922,2923. The defendant had contracted at Lyons, France, with manufacturers there to deliver at his store in New York certain goods, free of all charges, at a certain price in dollars, indicated by certain cipher marks. The manufacturers subsequently imported the goods into the United States, and upon appraisement by the appraiser for the purpose of collecting duties the defendant was examined as a witness, and required to state the price in dollars indicated by the cipher marks, which he declined to do, as prejudicial to his interests. Section 2922 of the Revised Statutes authorizes appraisers to examine on oath any person "touching any matter or thing they may deem material in ascertaining the foreign market value;" and section 2923 imposes a penalty for declining to answer any such interrogatory. There was no evidence of any concealment or fraud in the importation, or of the absence of thc ordinary means of ascertaining the market value of the goods in the principal markets of France, which was the only ultimate question for the appraiser's dctermination. Held, that the discretion of appraisers in putting inquiries under section 2922 is not unlimited, but restricted, by the purposes of the act,-by the the limitation of section 2902,-to "reasonable ways and means, " and to the exercise of Ii sound and fair judgment of what was material to the ascertainment of the market value in the principal markets of the country of exportation; that the inquiry as to the contract price for the future delivery of goods at a store in New York, free of all charges, was prima facie incompetent, be-
2. COURTS-JURISDICTION-SPEOIAL TRIBUNALS-REVIEW-ExCESS OF POWER.
CUSTOMS DUTIES-ApPRAISEMENT-EXAMINATION OF