fifth of the money. The jury in this case rendered a verdict for $175, but the court held that it was not a case for exemplary damages and that the verdict was excessive. In Smith v. Reynolds, 8 Hun, 128 (June, 1876), it was held, that the supplying of liquor to a person who is injured afterward by reason thereof, although done by the bartender without the knowledge or authority of the employers, and against their instructions, makes the employers liable under the civil damage act. This action was brought by a wife to recover damages for loss of support, resulting from the death of her husband, and the court- fourth department-held that such an action was maintainable, following Jackson v. Brookins, 5 Hun, 530. riding, that the wagon was upset and the wife's arm broken. In consequence of this injury, the plaintiff lost the services of his wife, and incurred expenses for medical attendance, nursing, etc. He brought an action against the liquor seller for damages. On the trial he was nonsuited on the ground that the evidence failed to show that the plaintiff had been injured in his person or property or means of support by reason of the injury complained of. The general term granted a new trial, holding that the ordinary services of the wife in the household belong to the husband, and for any injury to her whereby she is unable to render such services, the husband can maintain au action. It is his legal duty and obligation to furnish for his wife suitable medical attendance and care when necessary. The loss of the wife's service and the necessary expenses incurred to care for and cure her of her injuries were proper elements of damage which the husband could recover under the law of 1873 upon a proper case. The court seemed to take the view that the wife's services were a kind of property belonging to the husband, for the loss of which he could recover, the same as if his horse had been injured by the same cause. A similar question was presented in Volans v. Devens, 9 Hun, 558 (January, 1877), where the plaintiff brought an action for injuries to his minor son, who became intoxicated, was injured in consequence thereof and became insane, and was in that condition at the time of the trial. The same court that decided the Aldrich case (Boardman, J., writing the opinion in both cases), loss of service of his minor son, and the medical attendance and other expenses incident to the injury. A new question as to the liabilityof owners of buildings where liquor is sold, was presented in Mead v. Stratton, 8 Hun, 148 (June, 1876), where it was held, that a recovery can only be had against the owner of a building where intoxicating liquors are sold, under the clause of the act which provides that any person or persons owning or renting, or permitting the occupation of any building or premises, and having knowledge that intoxicating liquors are to be sold therein, shall be liable severally or jointly with the person or persons selling or giving away intoxicating liquors as aforesaid, for all damages sustained, and for exemplary damages," upon clear and satisfactory proof establishing the permission to occupy, with knowledge that liquors are to be sold therein; and neither the permission nor the knowledge can be presumed or in-held, in this case, that the father could recover for the ferred. While the principle enunciated is undoubtedly sound as applied to most cases, the court must have strained the evidence to the utmost limit and used its imagination freely to reach the conclusion that the owner of the building knew nothing about the sale of liquor on the premises. The action was against Stratton and his wife. Mrs. Stratton was the owner of the premises known as the "Globe Hotel," in Geneseo, and lived there with her husband who kept hotel, had a bar and sold intoxicating liquors; yet it is held, that she could not have been presumed to know that her husband ever sold any liquor to anybody. The court very charitably supposes that the wife was kept so busy in other "and perhaps distant" parts of the hotel that she probably did not know there was a bar in the building. This case went to the Court of Appeals and was decided January 17, 1882 (25 Albany Law Journal, 126). The judgment of the general term was reversed and that of the Circuit Court affirmed. The Court of Appeals held, that under the evidence it was a question of fact for the jury to determine whether Mrs. Stratton had knowledge that the building was occupied and used by her husband for the purpose of selling intoxicating liquors, and whether he intended to and did actually carry on and prosecute such business. That the jury in determining the question must give due consideration to the relations existing between the defendants, and the circumstances surrounding the case. That the facts that the title to the hotel was in her, that she lived there with her husband, and had charge of the domestic arrangements in conducting the business of the hotel, constituted evidence tending to show that she had knowledge of the business her husband was carrying on. The Court of Appeals also held in this case that the wife could maintain an action for loss of means of support caused by her husband's death produced by intoxication. This was the first time this question had come before the Court of Appeals. Still another feature of the law presented in Aldrich v. Sager, 9 Hun, 537 (January, 1877). In that case it appeared that one Crandall, a son-in-law of the plaintiff, bought liquor of the defendant, thereby became intoxicated, and by reason thereof so recklessly drove the team behind which he and the plaintiff's wife were He was an only son, about twenty years old, and worked with his father on the farm. Judge Boardman held that the father was entitled to the services of his minor son upon his farm. By the intoxication and consequent injury, he lost the value of such services, and was injured in his means of support. That the father was liable for the medical services rendered his son, and by being obliged to pay for such medical attendance he was, to that extent, injured in his property. Judge Boardman puts both of these cases on the same basis, and decides them both on the same principle. This case was carried to the Court of Appeals, and the judgment of the general term reversed. 74 N. Y. 526. Judge Andrews, who wrote the opinion, held that where an injury to means of support is the gravamen of the action, the plaintiff, to maintain his action, must show that in consequence of the intoxication, or the acts of the intoxicated person, plaintiff's accustomed means of support have been cut off or curtailed, or that he has been reduced to a state of dependence by being deprived of the support he had before enjoyed, and that in the absence of proof that the services of the son in this case, were necessary to the plaintiff's support, or that the charge brought upon him diminished his means so as to render them inadequate for his support, he was not entitled to recover. The question as to whether the services or medical expenses are property, was not discussed. The act authorizes a recovery for an injury to person or property, or means of support, and it would seem that the term "property" is broad enough to cover services and medical expenses. If the plaintiff had a right to the earnings of his minor son, such earnings were his property. So if he expended money for medical attendance he parted with so much property; or rather lost it in consequence of the intoxication, and was "injured in his property "to that extent. Certainly if the plaintiff paid a hundred dollars to a physician for services to his minor sonwhich the law required him to pay-he was deprived of so much property by the payment, and it could make no difference to him pecuniarily, whether he lost a horse worth a hundred dollars in consequence of the intoxication complained of, or paid out the same amount of money to a physician for attending his injured son No court would deny his right to recover the value of his horse on proper proof of loss. Judge Andrews himself held, that such an action could be maintained. Bertholf v. O'Reilly, supra. Yet the Court of Appeals say that for the loss of his money there can be no recovery. Judge Andrews says that "diminution of income or loss of property does not constitute an injury to means of support within the fair intendment of the statute, if the plaintiff notwithstanding has adequate means of maintenance from accumulated capital or property, or his remaining income is sufficient for his support." According to this view of the law, if a man has half of his property destroyed by the act of an intoxicated person he cannot recover its value, unless it is necessary for his support. If the remaining half will maintain him he is without remedy. A loss of property is an injury to property, and the act declares that "every husband, etc., who shall be injured in * * property * **by any intoxicated person, or in consequence of the intoxication, etc., shall have a right of action, etc." An injury to "means of support" is one thing, an injury to person or property is quite another thing, yet all are made actionable by the civil damage act. Morenus v Crawford and Hoag, 15 Hun, 45 (September, 1878), was an action brought by a married woman to recover damages under the civil damage act, the complaint alleging, among other things, that the defendant Crawford resided in one village, and the defendant Hoag in another. That on May 15, 1875, "the said defendants, wrongfully conspiring and intending to injure said plaintiff at their places of residence aforesaid, gave and sold intoxicating liquors to the said J. M., the plaintiff's said husband, which he drank," and that in consequence thereof he became intoxicated and killed a horse belonging to the plaintiff; to which complaint the defendants separately interposed general denials. The general term held, that even if the allegation as to a conspiracy be rejected as surplusage the complaint charged a joint sale, and that it was not sustained by proof of separate sales by each defendant at his place of residence. Jackson v. Brook ins, supra. The same general term-third department, held in Brookmire v. Monaghan, 15 Hun, 16, that no action would lie by a wife under the civil damage law for the death of her husband, following Hayes v. Phelan, 4 Hun, 733-same department. The case of Mead v. Stratton, supra, in which the right of the wife to maintain such an action is fully established, had not then been decided by the Court of Appeals. In Hill v. Berry, 75 N. Y. 229 (November, 1878), it was held, that a wife may maintain an action under the civil damage act, to recover damages for loss of means of support in consequence of the intoxication of her husband. It was In Davis v. Standish, 26 Hun, 609 (April, 1882), the court held, that the jury were not confined to an inquiry as to whether intoxicating liquor was the immediate cause of the death; that if it was the proximate cause it justified a verdict for the plaintiff. also held in this case, that the fact that the defendant was selling liquor without a license might be considered as a basis for exemplary damages. The court on the trial charged that the jury in estimating the damages might cousider the expectancy of life of the plaintiff and her husband (the deceased), based upon the Northampton tables. This was held no error; and that although the tables were not put in evidence the court would take judicial notice of them, as they are referred to and made a part of its rules (rule 71). The trial court said, that under this rule it was to have been expected that the plaintiff, being younger than the deceased, had a longer expectation of life. These are all of the reported decisions under the civil damage act that have come to my notice. It will be observed that the courts have had before them a great variety of questions affecting the rights of persons and property recognized by this act, and for the violation of which some remedy is attempted to be given. Like many other new laws it has met with a great diversity of opinion in its judicial construction and interpretation; but from a review of all the authorities, the following propositions may, at present, be considered established. 1. The act is constitutional. 2. A joint action may be maintained against the landlord and tenant for sales by the tenant, with the knowledge or permission of the landlord. 3. A joint action cannot be maintained against two or more persons, who, separately, at different times and places, have sold liquors to the same person, each quantity of liquor sold having contributed to produce the intoxication complained of. 4. An action will lie by a wife or minor children to recover their aliquot part of money lost by the husband or father by reason of his intoxication, if such money was necessary for the support of his family. 5. The liquor sellor is liable to an action if his bartender, even without his knowledge or authority, and against his instructions, supplies liquor to a person who is afterward injured thereby. 6. An action can be maintained by a husband to recover damages for the loss of services of his wife, medical expenses, ete., paid out for her where she is injured in consequence of the intoxication of a third person. 7. Such an action cannot be maintained by a father for the loss of services of his minor son, medical attendance, etc., caused in the same manner. 8. A wife can maintain an action for loss of means of support caused by her husband's death produced by intoxication. 9. A wife may also maintain an action for loss of means of support caused by the intoxication of her husband where death is not the result. 10. An action may be maintained to recover the value of property lost or destroyed in consequence of the act of an intoxicated person. 11. It is not necessary that intoxicating liquors should be the immediate cause of the injury. If it was the proximate cause the plaintiff may recover. 12. In an action by a wife to recover damages on account of the loss of her means of support, caused by the death of her husband, produced by intoxication, the expectation of life of her husband and herself, based upon the Northampton tables, may be considered in estimating the damages. I N error to the Supreme Court of the State of Texas. WAITE, C. J. The Western Union Telegraph Company is a New York corporation engaged in the business of transmitting telegrame at fixed rates of compensation. Its lines extend into and through most of the States and Territories of the United States, and to Washington, in the District of Columbia. It has availed itself of the privileges and subjected itself to the obligations of title 65 of the Revised Statutes, relating to telegraph companies, and its lines connect with those owned and established by the government of the United States for public purposes. It has one hundred and twenty-five offices in the State of Texas, and is in close communication with other telegraph companies doing business in this country and abroad. By the Constitution of Texas (article 8, § 1), the Legislature is authorized to "impose occupation taxes, both upon natural persons and upon corporations, other than municipal, doing business in the State;" and by article 4655 of the Revised Statutes, enacted under this provision of the Constitution, every chartered telegraph company doing business in the State is required to pay a tax of one cent for every full rate message sent, and one-half that for every message less than full rate. This tax is to be paid quarterly to the comptroller of the State on sworn statements made by an officer of the company. In addition to this, taxes must be paid on the real and personal property of the company in the State. Between October 1, 1879, and July 1, 1880, the company sent over its lines from its offices in Texas 169,076 full rate, and 100,408 less than full rate, messages. A large portion of these messages were sent to places outside of the State, and by the officers of the government of the United States on public business. The company neglected to pay the tax imposed, and a suit was brought in one of the courts of the State, for its recovery. In defense it was insisted that the law imposing the tax was in conflict with the Constitution and laws of the United States, and therefore void. The Supreme Court of the State, on appeal, sustained the law, and directed a judgment against the company for the full amount claimed, allowing no deductions for messages sent out of the State, or by government officers on government business. To reverse that judgment this writ of error has been brought. In Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1, this court held that the telegraph was an instrument of commerce, and that telegraph companies were subject to the regulating power of Congress in respect to their foreign and inter-state business. A telegraph company occupies the same relation to commerce as a carrier of messages, that a railroad company does as a carrier of goods. Both companies are instruments of commerce, and their business is commerce itself. They do their transportation in different ways, and their liabilities are in some respects different, but they are both indispensable to those engaged to any considerable extent in commercial pursuits. Congress, to facilitate the erection of telegraph lines, has by statute authorized the use of the public domain and the military and post roads, and the crossing of the navigable streams and waters of the United States for that purpose. As a return for this privilege those who avail themselves of it are bound to give the United States precedence in the use of their lines for public business at rates to be fixed by the postmaster-general. Thus, as to government business, companies of this class become government agencies. The Western Union Company having accepted the restrictions and obligations of this provision by Congress, occupies in Texas the position of an instrument of foreign and inter-state commerce, and of a government agent for the transmission of messages on public business. Its property in the State is subject to taxation the same as other property, and it may undoubtedly be taxed in a proper way on account of its occupation and its business. The precise question now presented is whether the power to tax its occupation can be exercised by placing a specific tax on each message sent out of the State, or sent by public officers on the business of the United States. In State Freight Tax case, 15 Wall. 232, this court decided that a law of Pennsylvania requiring transportation companies doing business in that State to pay a fixed sum as a tax "on each two thousand pounds of freight carried," without regard to the distance moved or charge made, was unconstitutional, so far as it related to goods taken through the State, or from points without the State to points within, or from points within to points without, because to that extent it was a regulation of foreign and inter-state commerce. In this the court but applied the rule, announced in Brown v. Maryland, 12 Wheat. 444, that where the burden of a tax falls on a thing which is the subject of taxation, the tax is to be considered as laid on the thing rather than on him who is charged with the duty of paying it into the treasury. In that case it was said, a tax on the sale of an article imported only for sale was a tax on the article itself. To the same general effect are Welton v. Missouri, 91 U. S. 275; Cook v. Pennsylvania, 97 id. 566, and Webber v. Virginia, 103 id. 344. And in Passenger cases, 7 How. 283; Crandall v. Nevada, 6 Wall. 35, and Henderson v. Mayor of New York, 92 U. S. 259, taxes upon passenger carriers of a specific amount for each passenger carried were held to be taxes on the passengers; and in State Tonnage cases, 12 Wall. 204; Peete v. Morgan, 19 id. 581; Cannon v. New Orleans, 20 id. 577, and Inman Steamship Co. v. Tinker, 94 U. S. 238, that taxes on vessels according to measurement, without any reference to value, were taxes on tonnage. The present case, as it seems to us, comes within this principle. The tax is the same on every message sent, and because it is sent, without regard to the distance carried or the price charged. It is in no respect proportioned according to the business done. If the message is sent the tax must be paid, and the amount determined solely by the class to which it belongs. If it is full rate, the tax is one cent, and if less than full rate, one-half cent. Clearly if a fixed tax for every two thousand pounds of freight carried is a tax on the freight, or for every measured ton of a vessel a tax on tonnage, or for every passenger carried a tax on the passenger, or for the sale of goods a tax on the goods, this must be a tax on the messages. As such, so far as it operates on private messages sent out of the State, it is a regulation of foreign and inter-state commerce and beyond the power of the State. That is fully established by the cases already cited. As to the government messages, it is a tax by the State on the means employed by the government of the United States to execute its constitutional powers, and therefore void. It was so decided in McCulloch v. Maryland, 4 Wheat. 316, and has never been doubted since. It follows that the judgment, so far as it includes the tax on messages sent out of the State, or for the government on public business, is erroneous. The rule that the regulation of commerce which is confined exclusively within the jurisdiction and territory of a State, and does not affect other nations or States or the Indian tribes, that is to say, the purely internal commerce of a State, belongs exclusively to the State, is as well settled as that the regulation of commerce which does affect other nations or States or the Indian tribes belongs to Congress. Any tax therefore, which the State may put on messages sent by private parties, and not by the agent of the government of the United States, from one place to another exclusively within its own jurisdiction, will not be repugnant to the Constitution of the United States. Whether the law of Texas, in its present form, can be used to enforce the collection of such a tax is a question entirely within the jurisdiction of the courts of the State and as to which we have no power of review. The judgment of the Supreme Court of Texas is reversed and the cause remanded with instructions to reverse the judgment of the District Court and proceed thereafter as justice may require, but not inconsistent with this opinion. COMPROMISE OF SUIT BY ATTORNEY. RHODE ISLAND SUPREME COURT, JANUARY 19, 1882. WHITMAN.* WHIPPLE V. The American law, unlike the English, does not empower an attorney at law to settle a pending suit without the knowledge and assent of his client. Courts in this country however are inclined to favor a compromise fairly made by an attorney, and will uphold it if good reasons can be found for it. Hence this court refused to disturb a compromise made by an attorney, with the assent of the party in interest, but without the knowledge of the plaintiff of record, the attorney's client, when the compromise was reasonable and appeared advantageous. A. sued, as trustee of his wife, who, under the Rhode Island statutes, could at any time by her sole act assign the claim sued. A.'s attorney, without his knowledge, but with the wife's assent, compromised the suit. A. waited nearly a year and then filed his petition for a trial of the case the wife claiming to have been coerced into giving her assent, but the coercion rose only from a mortgage executed by A. and his wife: Held, that the petition must be dismissed. LAINTIFF'S petition for a trial. The facts appear Pin the opinion. John M. Brennan, Ziba O. Slocum and James C. Collins, for plaintiff. Henry B. Whitman, for defendant. DURFEE, C. J. This is a petition for the trial of an action, brought in this conrt by the petitioner as trustee of his wife, in which judgment was rendered for the defendant on submission for ten cents costs. The petitioner alleges in the petition that his attorneys submitted to judgment without his knowledge and consent, and against his wishes and interest. He makes affidavit in support of the petition. The petitioner was in fact in jail under sentence for four months when the judgment was rendered and it is not claimed that he personally either knew of or consented to it. The action was for money lent. The money originally came from policies of insurance payable to the father of the petitioner's wife and assigned by him to her. According to the father's testimony the plaintiff had no ground for expecting to recover more than about thirty-one hundred dollars, though, being inclined to exaggerate, he did in fact claim a much larger sum. The defendant on the other hand maintained and now testifies that he had paid all but nineteen hundred dollars, and that he had claims in set off or counter claims in excess of that amount. One Samuel G. Curry also had a claim against the petitioner and his wife for about eighteen hundred dollars, money lent on interest at five per cent a month, for which he was secured by mortgage on the suit and on Mrs. Whipple's furniture. The judgment was the result of a settlement by which one hundred and fifty dollars were paid to Mrs. Whipple; twelve hundred dollars to Samuel G. Curry in extinguishment of his claim, and three hundred dollars to the attorneys to compensate them for their *To appear in 13 Rhode Island Reports. services. Mrs. Whipple also secured permission to occupy free of rent for a certain time her house which was under mortgage to the defendant. The settlement was made with the consent and approval of Mrs. Whipple, acting under the advice of two trustworthy friends, men of business, whom she had called in at the suggestion of the attorneys. She however asserts that she consented under pressure. The inducements which principally led to the settlement, aside from the advantages of money in hand over money in suit, were, first the danger of delay which, owing to the ruinous rates of interest promised to Curry, was likely to prove as disastrous as defeat, and second to the possibility that an administrator might be appointed on the estate of Mrs. Whipple's father, at the instigation of the defendant, unless he was appeased, and might contest her right to the money in suit on the ground that her father who was insolvent when he assigned to her, executed the assignment in fraud of his creditors. are satisfied that the settlement was fair and probably advantageous, and that if the attorneys had power to compromise they are not chargeable with any abuse of their power. Judgment was rendered for the defendant in the action in April, 1880. This petition was not filed until April 9, 1881. One of the results of the settlement was that the mortgage which Curry held on Mrs. Whipple's furniture was transferred for her benefit to her mother. This mortgage was subsequently surrendered, and a new mortgage given on the furniture, thus released, by the petitioner and his wife, to raise money for him. Under the new mortgage the furniture has been sold to satisfy the debt secured by it. The question is whether in view of all the circumstances, the settlement shall be upheld or a trial granted. We The decisions on the power of an attorney to compromise are contradictory. In England however the doctrine established by the later cases, after some vacillation, is, that the attorney has power, by virtue of his retainer, to compromise the action in which he is retained, provided he acts bonâ fide and reasonably, and does not violate the positive instructions of his client, and that the compromise will bind the client, even if he does violate instructions, unless the violation is known to the adverse party. Swinfen v. Swinfen, 18 C. B. 485; Swinfen v. Lord Chelmsford, 5 H. & N. 890; Chambers v. Mason, 5 C. B., N. S., 59; Chawn v. Parrot, 14 id. 74; Prestwich v. Poley, 18 id. 806; Fray v. Voules, 1 El. & El. 839; Butler v. Knight, L. R., 2 Exch. 109; Thomas v. Harris, 27 L. J. N. S., Exch. 353: In re Wood, ex parte Wenham, 21 W. R. 104. The reason is, the attorney, within the scope of his retainer, is considered the general agent of his client. And it is strongly argued in support of the power, that it ought to be upheld both as a matter of public policy and for the good of the client, inasmuch as the attorney generally knows vastly better than the client whether it is better to risk the trial of the suit or to compromise it, and is often called upon to do the one or the other suddenly in the absence of the client. See Wharton on Agency, § 590. The English doctrine finds support in a few Amer. ican cases: Wieland v. White, 109 Mass. 392; Potter v. Parsons, 14 Iowa, 286; Holmes v. Rogers, 13 Cal. 191; North Missouri R. Co. v. Stephens, 36 Mo. 150; Reinhold v. Alberti, 1 Binn. 469; but the main current of decision in this country seems powerfully against it. Weeks Attorneys at Law, § 228; Ambrose v. McDonald, 53 Cal. 28; Preston v. Hill, 50 id. 43; Levy, Simon v. Brown, 56 Miss. 83; Picket v. Merchants Nat. Bank, 32 Ark. 346; Walden v. Bolton, 55 Mo. 405; Mandeville v. Reynolds, 68 N. Y. 528; Wadhams v. Gay, 73 Ill.415; People v. Quick, 92, id.580. The American courts however show a leaning in favor of such compromises, when fairly made, and readily uphold them if they can find grounds on which to do so, "although," says Chief Justice Marshall in Holker v. Parker, 7 Cranch, 436, 452, "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. See also Roller v. Wooldridge, 46 Tex.485; Potter v. Parsons, 14 Iowa, 286. In the case at bar there are several reasons why the court should not disturb the compromise. The compromise was in itself fair and reasonable if not eminently advantageous. We mention this rather as a favorable feature than as an absolute reason for upholding the compromise, since a party who prefers litigation to settlement is generally entitled to enjoy his preference. Fray v. Voules, 1 El. & El. 839. The case here however was peculiar in its circumstances. The plaintiff was suing, not for himself, but as trustee for his wife. She was the real owner, so to speak, of the lawsuit. Uuder our statute, Gen. Stat. R.I.,chap.152, section 6, she might, for ought we can see, have assigned for valuable consideration her equitable or beneficial interest in the suit or in the debt sued for, absolutely and without joinder with her husband, to some third person or even to the defendant himself. But if she had the right to do this, we do not see why she had not also the right, in the absence of her husband, acting under the advice of trustworthy friends, to enter into a fair and reasonable compromise of the suit. To hold that the husband might arbitrarily reject a compromise, which she desired, would be to put her completely at his mercy. It seems to us that the most which he could require, considering his purely titular relation to the suit, would be indemnity for his costs and expenses as trustee, which in the case here he seems to have substantially got in the settlement. It is true the wife claims to have acted under pressure, but the pressure, so far as appears, came from Samuel G. Curry, whom she and her husband by their contracts and mortgages had armed with highly oppressive pow ers. We do not think it was such as to invalidate the compromise. Moreover, even if this view were inadmissible, it was the duty of the petitioner, if he chose not to abide by the compromise, to repudiate it promptly and offer to do what he could to reinstate the parties in statu quo. Mayer v. Foulkrod, 4 Wash. C. C. 511; Peru Steeland Iron Co. v. Whipple File, etc, Co,.109 Mass. 464. He did not do so, but waited nearly a year before bringing this petition, enjoying meanwhile the benefit of the settlement. He does not even now offer restitution, but on the contrary he has taken advantage of the surrender of the mortgage on his wife's furniture to mortgage it anew, thus ratifying the settlement to that extent, and as he cannot ratify in part without ratifying in toto, virtually ratifying it in its entirety. We think therefore that a trial must be denied, but under the circumstances without costs. Petition dismissed. DEBT TO BANK IN VIOLATION OF STATUTE ILLINOIS SUPREME COURT, MAY TERM, 1882. The charter of an Illinois bank provided thus, "No director of said corporation shall be indebted to said corporation to an amount greater than seventy-five per centum of the capital stock held by such director." Held, that an indebtedness by a director in violation of this provision could not be recovered by the bank. The principle adopted by the Federal courts in relation to loans by National banks on mortgages dissented from in its application to a State statute. A CTION upon promissory notes against an indorser. The opinion states the case. The plaintiff appealed. R. A. Halbert, E. L. Thomas, C. F. Nætling, and Hay & Knispel, for appellant. Wilderman & Hamill, for appellees. MULKEY, J. This is an appeal from the Appellate Court for the Fourth District, affirming a judgment of the Circuit Court of St. Clair county, disallowing a claim of $120,000 in favor of Joseph Penn, as assignee of the People's Bank of Belleville, against the estate of Conrad Bornman, deceased. We do not deem it necessary to make an extended statement of the facts of this case in order to present our views upon the legal question which controls it. We say question, for in the view we take of the case the whole controversy turns upon a single controverted point. It is sufficient to state generally that in 1874 the Belleville Nail Mill Company borrowed of the People's Bank of Belleville a large amount of money, including the sum in controversy. This loan was evidenced by a number of instruments in the form of inland bills of exchange, most of which were drawn by Conrad Bornman and James C. Waugh, as president and secretary, respectively, of the Belleville Nail Mill Company, upon and accepted by F. H. Pieper, as the company's treasurer, and were indorsed in blank by Bornman and Waugh. The others were drawn by Waugh and Bornman upon Pieper as treasurer in the same way, the only difference being the latter were payable to Bornman as president, and by him indorsed to the bank. These instruments were renewed from time to time, until finally the company became insolvent and Bornman died, leaving the matter unsettled, when they were presented for allowance against his estate, with the result already stated. It further appears that at the time of borrowing the money, and of the execution of the instruments in question, Bornman and Pieper were directors of the bank, the latter being also its president, and that the charter of the bank contained a provision declaring that "no director of said corporation shall be indebted to said corporation, either directly or indirectly, or individually, at any time, to an amount greater than seventy-five per centum of the capital stock held by such director in his own name in good faith as his own." No question is made as to the power or right of the company to borrow, or of the bank to lend the money, nor is the supposed liability of Bornman's estate placed upon the ground that he was a stockholder of the bank to the amount of the indebtedness at the time it is claimed to have occurred; but the simple inquiry is, could Bornman, being a director of the bank, notwithstanding the absolute prohibition in its charter, without regard to his ownership of stock, enter into a valid contract with it as guarantor or indorser of the Nail Mill Company's paper-or in other words, could the bank, in palpable violation of this express prohibition in its charter, go on and contract ad libitum, with its directors, and yet be permitted to recover, just as though its charter contained no such provision? We put the question in this form for the reason we see no special circumstances in the case that take it out of the general rule that all contracts made in violation of an express statutory provision are inoperative and void, and no recovery can be had upon them. Upon a careful examination of the record we have been unable to discover any evidence of overreaching, fraud or bad faith on the part of Bornman upon which to found an estoppel, or indeed any thing exceptionable in his conduct at all, outside of the simple fact that he |