Opinion of the Court.

The

tion of this judgment in full, this 15th day of December, 1879. C. S. Jeffries, adm'r, &c., by Joseph S. Laurie, his att'y." 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 compromise 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 us, 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

Opinion of the Court.

plaintiff 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.

As to the finding of fact that there was a contract by the first administrator giving to the attorneys an interest in the proceeds of the claim, with authority to compromise it, this court is prohibited, by § 1011 of the Revised Statutes, from reversing a case on a writ of error for any error in fact. In this case there was a dispute as to the fact, and evidence on both sides, and it was a fair exercise of the judgment of the court, on the evidence before it, to make the finding of fact it did. Under such circumstances, an erroneous finding of the fact cannot be held to be an error of law. Hyde v. Booraem, 16 Pet. 169, 176; Parks v. Turner, 12 How. 39, 43.

There is nothing to show that the Circuit Court was not correct in its conclusion that the right of recovery in the suit was very doubtful, notwithstanding the judgment. This being so, as the writ of error was pending, the compromise would seem to have been a proper one for the interests of the estate. It was said by this court, in Holker v. Parker, 7 Cranch, 436, 452, speaking by Chief Justice Marshall:

"Although an attorney at law, merely as such, has, strictly speaking, no right to make a compromise, yet a court would be disinclined to disturb one which was not so unreasonable in itself as to be exclaimed against by all, and to create an impression that the judgment of the attorney has been imposed on or not fairly exercised in the case."

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 The administrator had the usual power of a trustee over the estate, under his responsibility for a breach of his trust.

case.

Opinion of the Court.

Perry 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 g. 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.

The contract made by the first administrator having given to the attorneys a power coupled with an interest, the authority to compromise was not impaired by the death of the first administrator, and his successor was bound by the contract. Story on Agency, $$ 476, 477.

It is apparent, from the record, that Mr. Laurie continued to be a copartner with Mr. Crews so far as this case was concerned. That being so, he had authority to make the compromise in question without the co-operation or consent of Mr. Crews.

No error of law is found in the proceedings in the Circuit Court, and its orders, made January 26th, 1880, and March 10th, 1880, are

Affirmed.

Opinion of the Court.

VOGEL, Executor, v. GRUAZ.

IN ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF ILLINOIS.

66

Argued January 17th, 18th, 1884.-Decided February 4th, 1884.

Privileged Communication—Slander.

A communication made to a State's attorney, in Illinois, his duty being to 'commence and prosecute" all criminal prosecutions, by a person who inquires of the attorney whether the facts communicated make out a case of larceny for a criminal prosecution, is an absolutely privileged communication, and cannot, in a suit against such person to recover damages for speaking words charging larceny, be testified to by the State's attorney, even though there be evidence of the speaking of the same words to other persons than such attorney.

Mr. James K. Edsall (Mr. John B. Hawley was with him) for plaintiff in error.

Mr. H. S. Greene (Mr. F. W. Barnett was with him) for defendant in error.

MR. JUSTICE BLATCHFORD delivered the opinion of the court. 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

Opinion of the Court.

7th, 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.

Three witnesses for the plaintiff gave evidence tending to prove the speaking to them by the defendant of more or less of the words set forth in the declaration; and afterwards C. L. Cook was sworn as a witness for the plaintiff, and testified that he was State's attorney for Madison County, Illinois; that he had a slight acquaintance with Bircher; and that he knew Gruaz. The following proceedings then occurred:

"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 disclosed 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 dis