carriage took place; together with the testimony of· the physicians touchirtgher c.oridition, and the causes of miscarriage; and frol11 the entire evidence it is for yon to say what the cause of the miscarriage was. H you find that it was caused by the wrong done the plaintiff upon the then the plaintiff is entitled to be compensated for the suffering:caused her thereby, and for any injurious effects, temporary or pertrliment,·caused thereby to thepersbn, health, and strength of the plHintiff. Briefly restated, the plaintiff is entitled to be fairly compensated for all,injUries,temporaryor permanent, directly caused to t,he plaintiff, in her person, health, and strength, by the wrong done her, including compensation for the pain and suffering, me!1tal and physical, which has been caused, or may be hereafter caused, to the plaintiff, by reason of the wrong suffered bY"the plaintiff. The ascertainment of the amount to be .Rwarded as compensation for such injuries as you find the plaintiff is entitled to recover for is of necessity intrusted to the sound common sense and good judgment of the jury. The case, gentlemen, is in Yo\'l'r hands. Give it the consideration it deserves, alid render the verdict which, in your impartial judgment, appears to be the proper response to the evidellcesubmitted to you, and the instructions given you by the court. Verdict for plaintiff . for $11,000.
(District Court, E. D. Missouri, E. D. June 7, 1890.)
WITNESB-TRANBA.CTIONS WITH DECEASED PEnSON-SUITS AGAINST EXECUTORS.
Under Rev. St. U. S, § 8li8, providing that in actions against executors no witness who is a party to the action shall be allowed to testify as to any transaction with the testator, a witness who is not a party, but is interested in the result of anactiQn, may testify concerning transactions between himself and the testator. This statute covers the case; and under the rule that, where congress has enacted a law covering a particular case, such1aw must prevail in the federal courts, though it differs from the state law, Rev. St. Mo. Ii 8918, on the same subject, does not apply.
9. SAME-CONFLICTING STATE AND FEDERAL LAWS.
At Law.' George D. Reynolds, U. S. Dist. Atty., for plaintiff. H. A. Lom;'!}, for defendant.
THAYER, J. The testimony of C. C. Crecilius, taken in connection with other: testimony offered by the plaintiff, clearly shows that the deceased assigned his stock in the insolvent bank to Crecilius, the cashier, with intent to evade his liability Rsn sbareholder. According to thetestimbny,of Crecilil1s) the deceased had not only been advised before the:
STEPHENS V. BERNAYS.
sale that the bank had sustained considerable losses, but he declared at the time of the sale thnt his purpose in selling was to avoid his liability as a stockholder. The sale appears to have been made only two days before the bank closed its doors, and no change took place in the condition of the bank in the mean time. Crecilius gave his notes for the stock, instead of paying for the same in money; and according to his statement the notes were to be surrendered, and the sale canceled, if at the end of 60 days the deceased was then assured that the bank was all right. Crecilius himself had litlleor no means, at the. time of the purchase, and was rendered utterly insolvent by the failure of the bank two days later. His object in making the purcbase in question was to withdraw the stock from the market, and save the credit of the bank, which was then in a precarious condition. These facts, most of which were established by the testimony of Crecilius, warrant the conclusion that the pretended sale was and is voidable as to creditors of the insolvent batik, who are represented in this proceeding by the receiver. Thomp. Liab. Stockh.§ 215, and cases cited. A question arises, however,ltnd was reserved at the trial, touching the competency of Crecilius to testify against the executrix concerning transactions between himself and the testator. The federal statutes provide (section858) that"No witness shall be excluded ... ... ... in any civil action because he is a·party to or interested in the issue tried: provided, that inactions hyor Ilgainst executors. ... ... ... in which jUdgment may be rendered for or against thew. neither party shall be allowed to testify against the other as to any transaction with or statement by the testator, ... ... ... unless called to testify theretoby the opposite part)·. ... ... ... In all other respects the laws of the state in which the court is held shall be the rules of decision as to the competency of witnesses in courts of the United States," etc. The state law on the subject (section 8918, Rev. St. Mo. 1889) provides that"No person shall be disqualified as a witness in any ch'U suit ... ... ... by reason of his interest in the event of the same, as a party or otherwise: '" ... ... proVided that, in actions where one of the original parties to the contract or canse of action in issue and on trial is dead or ... '" ... insane. the other party to 811Ch contract or cause of action shall not be admitted to testify ... ... ... in his own favor; ... ... ... and, where an execntor or administrator is a party. the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made With a person who is living and competent to testify." etc. 'rIie first clause of the proviso of section 8918, sup1'a, as heretofore construed by the state courts, has much greater scope thl,lr. the federal'statutt' above referred to. Thus, in Meier v. Thieman. 90 Mo. 434, 2 S. W. Rep. 435, it was beld that by the proviso in question a person was rendered incompetent to testify as to transactions with a decedent in a suit brought by his heirs, although the person tendered as a witness was not a party to the suit. The decision appears to be based on the ground that a witness, to be excluded by the state law, need not be a party to the record, but will be excluded as a witness as to all contracts Or trans-
,acti0ns'Detween,himselfand a deee8serl person, when the witness has an iliterest in the result of the suit, he is or is not a party: to the -:OO<llilrd,. Hence it is important todeterrp.ine, in the firstinstarice, whether the' competency' qfCFeciliul'l to testify as to transactions between' himself and the decedent is: to be tested by federal or state law. The rule is tba.t,where congress·has.legislated on the subject,-that is, has enacted a law covering the particular casej-such law must prevail ill the federal courts;:notwithstanding it differs from the state law; Potter v. Bank, 102, U.·S. 165; 1/'UIUrance Co. v.Schaefer, 94 U. S. 458;, Rice v. Martin, 8 Fed. Rep. 476. The state laws control in determining the competency of witnesses only in cases like that of Packet Co. v. Clough, 20 Wall. 537, which do not fall within any provision of the federal laws. The case at bar is clearly within the terms of section 858. The effort :i& Crecilius asa witness on :the ground of interest; but the first ·celause·ofthe section declares that interest shall he:nodisqualification "in 'any civil «ction," andthe onlyexoeption to that rule. is that mentioned. in the proviso,-that a person called as witness shalt not be allowed to to any transactions with or statement by a decedent, if the suit is.against his executor. or administrator, and the witness is himself an party' to the' suit, unless the witness is called upon to testify by the executor or administrator. The case at bar seems to be strictly .like tile calle of Potterv. Bank, BUpra, in which a person situated as Orecilios:is, with respect to the litigation, was held to be a competent witness. Whatever/view, theref(}re, the court:might entertain as to the competency Of the tin4er the state Ia W, it is compelled to that he is cO'mpetentwitness by the federal statutes. Judgment will al.icordinglygo against thee'xecutrix for the.Rlllount of the comptroller's assessment; that is, for 83,500, with intel'est at 6 pel,' cent. per annum, to be frQm September 24, 1889, to this date. . ;,'
S'J,'J\,BLER '1>. VILLAGE OF ALEXANDRIA.
(OWOfl,U Coun, D. Minnesota.
May Itl. 189M
MUNIOIPAL CORPORATIONS-SERVIOB OJ' PROOESS-SPECIAL LAW .... VILLAGB OJ' ALBXANDRIA·
. (jbaxWr of the village ot Alexandria, (Act Minn. March IS, 1881,) S 2t. ))fOVldestbaf., wbil1\ any suit is comme.nCEld against thil village, the service therein sha1l-'b8'made by'eop1,lett with the recotder, the general law (Gen. Laws Minn. l6ali. 4lHliIBl ptesoriping ;for I>el'vice 01 8utllIjlOns on municipal corporations on "the may.QI' ()l' chillf exeQ-q\lve officer of such ,col'Jl!lration" does not apply, and a service upon tlteVillage of Alexandria, by leaving a 'copy with the president of the council ' .
cAtJA,w., ·Motion to set aside summons· R6ytr0lds, for plaintiff· . . ,ll. JenkiRl, for· defendant. ".
·, .Re1Molds, ,Srewart&i Gso.' H.