shameful negligence. No doubt the business which it does for the mercantile classes between the great commercial centers is, for the most part, well done; but the local messages which it transmits for the ordinary people are, to our knowledge, very often neglected. We know of several instances of such messages being so much delayed that the sender could have reached the point by rail in a shorter time.

We could give an interesting catalogue

He

of them. The last one which came to our knowledge was that of a friend of ours going from St. Louis to Burlington, Vermont. telegraphed from Buffalo that he was coming, and arrived before the telegram was delivered. These abuses will never be corrected while the telegraphic service of the country remains in the hands of the present monopoly. the imperative duty of Congress to take possession of the lines of the Western Union Telegraph Company under the existing law, which allows it that privilege, and make it a part of the postal service of the country.

NOTES OF RECENT DECISIONS.

3

It is

INNKEEPER. [LIABILITY]-FOR INJURY TO GUEST BY COMMUNICATING TO HIM A CONTAGIOUS DISEASE.-In Gilbert v. Hoffman, the Supreme Court of Iowa affirmed the doctrine of Smith v. Baker, that an innkeeper is liable for knowingly or negligently communicating a contagious disease to the guests. The evidence showed that the plaintiff arrived by the train at the place where the defendant's hotel was situated about three o'clock in the morning. She was met at the depot by her husband, who had been stopping a number of days at the hotel, and she accompanied him to the house and remained there a guest until the evening of the next day, when the hotel was closed and "quarantined" by the authorities of the town; that is, the inmates of the house were not permitted to depart from it, except as they were removed to the pest-house, when they were taken with the disease; and the public was excluded from it. When she went to the house one of the guests was lying sick in a room in the house, and his disease proved to be the small

2 23 N. W. Repr. 623.

20 Fed. Repr. 709.

pox. He was examined by the physician the day before plaintiff arrived at the hotel, and there was evidence tending to prove that the physician there pronounced the disease smallpox, and informed defendants that that was its character. There is a conflict in the evidence, it is true, as to the time when defendants were informed as to the character of the disease with which this person was afflicted, but the jury were warranted in finding that the information was communicated to them on the day before plaintiff's arrival at the hotel. There was also evidence tending to prove that, in a conversation a few hours after her arrival, one of the defendants assured her husband in her presence that the disease was not in the house, and that the rumors that the person who was sick in the house had small-pox, were circulated for the purpose of injuring the business of the hotel. While plaintiff's husband was at the depot awaiting her arrival, he was informed that a rumor was current that the disease was in the house, and he informed her of this before she went there.

*

Counsel for appellants contended that this evidence did not warrant the jury in finding for plaintiff, because (1) it did not show that defendants were guilty of such negligence as rendered them liable; and (2) that plaintiff, by going to the house after she was informed of the rumor which was current as to the presence of the disease, and without instituting an inquiry as to its truth, was guilty of such contributory negligence as precluded a recovery. But the court held that this position could not be maintained. In giving the opinion of the court, Reed, J., said: "The jury were warranted by the evidence in finding that defendants, with knowledge of the prevalence of the disease in the hotel, kept it open for business, and permitted plaintiff to become a guest without informing her of the presence of the disease. That they would be liable to one who became their guest under these circumstances and contracted the disease while in their house, and who was himself guilty of no negligence contributing to the injury, there can be no doubt. The district court properly left it to the jury to determine whether plaintiff was guilty of imprudence or negligence in going to the hotel after she heard the rumor that the disease was in the house, without inquiring further as to its truth; and they were

told that if the circumstances were such as that ordinary prudence and care demanded that she should, before going to the hotel, make further inquiry as to the truth of the rumor, and she neglected to do this, and this neglect contributed to the injury, she could not recover. The instruction states the rule on the subject quite as favorably to the defendants as they had the right to demand. By keeping their hotel open for business, they in effect represented to all travelers that it was a reasonably safe place at which to stop; and they are hardly in a position now to insist that one who accepted and acted on this representation, and was injured because of its untruth, shall be precluded from recovering against them for the injury, on the ground that she might by further inquiry have learned of its falsity. But the jury were warranted by the evidence in finding that she was not guilty of negligence in not inquiring further as to the truth of the rumor before going to the hotel. Her husband who, informed of the rumor, had been stopping at the hotel for two or three days, had heard nothing while about the house of the prevalence of the disease. The information as to the currency of the rumor, was communicated to him at the depot while he was awaiting the arrival of the train. The jury might well have concluded that under the circumstances she was justified in assuming that the rumor was not of such importance as to demand further investigation."

4

PLEADING. [RECOUPMENT.]-OF THE DOCTRINE OF RECOUPMENT AND THE MANNER OF PLEADING THIS DEFENSE.-In Sterling Organ Co. v. House, the Supreme Court of Appeals of West Virginia hold that in an action upon a contract the defendant may claim a recoupment under the plea of non-assumpsit, provided he file with the plea a notice that he will claim to have the damages recouped, which he has sustained by a breach of the agreement on the part of the plaintiff. In the opinion of the court, Green, J., goes at length into the learning on the subject of recoupment, as follows: "At common law the defendant had a right to recoup the plaintiff's damages in a few instances, when

425 W. Va. 64 (Adv. Sheets).

the reduction claimed sprang immediately from the claim relied upon by the plaintiff. This was denominated a recoupment. This right was anciently confined within very narrow limits and was indeed little if anything more than a mere right of deducting from the amount of the plaintiff's recovery, on the ground that his damages were really not as great as alleged. This remedy of recoupment was of very limited application, and was originally so trammeled by technicalities, that it was of but little use, and the term recoupment for a time became obsolete; yet the principle was always retained. Recently not only has the term recoupment been revived, but the doctrine has sprung into new life. The rigid rules of the common law, which so restricted this right, have yielded to the advance of civilization, and a new vigor has been infused into this remedy; and it is now held that the defendant may recoup generally, whenever the demands of both parties spring out of the same contract or transaction; and it opens in this country generally the entire contract or transaction, so far as is necessary to determine the plaintiff's right to damages and the amount of the defendant's cross-claims.

The defense of recoupment differs from set-off in several important particulars. First, it is confined to matters arising out of and connected with the transaction or contract, upon which the suit was brought; secondly, it has no regard to whether the claim be liquidated or unliquidated; thirdly, if the defendant's claim exceeds the plaintiff's, he can not in that action recover the balance which was due to him.5 The instances and extent, to which the defendant can exercise this right of recoupment, are to a considerable degree unsettled; and the manner of its exercise is also to some extent unsettled. To comprehend the character of the disputes, which have arisen as to the manner of the exercise of this right of recoupment, I will quote from the dissenting opinion of Judge Cowen in Barber v. Rose.6 The rule of recoupment has come to us from England accompanied with the remark, that when the quality of the work done at a stated price is to be im

5 Ward v. Fellers, 3 Mich. 281; Railroad Co. v. Jameson, 13 W. Va. 837-838.

65 Hill, 79.

peached, notice of the defense is proper." Counsel had complained of surprise and Buller, J., had refused to allow the defense, while Lord Kenyon had allowed it; and the remarks mentioned seems to have been thrown out, first, as a reply to the counsel, and, secondly, as possibly tending to reconcile conflicting decisions of the judges. They probably led the chancellor to say in Reab v. McAlister, that he considered a like defense perfectly just and equitable when the plaintiff has notice of it. In Ives v. Van Epps,8 the point was raised, but it was not thought necessary to decide it. I then said notice may be necessary; but added that the rejection of the evidence was no part of the want of it. The question has never been much thought of so far as I can discover, nor do I find it has ever become necessary to decide it in any of the cases where it has been mooted. In no English case except Barton v. Butler, is the idea of notice suggested. Other decisions have gone forwardfany without attention to it. 10 These cases belong to two classes; one where the defense was partial and the other where it was total. The want of notice was equally disregarded in both. Mr. Leigh in his late book on Nisi Prius," declares the rule in Barton v. Butler, in these words: "The defendant should (though he need not) give notice to the plaintiff of the intended defense; for otherwise he may have given to complainant a surprise, as he may only come prepared to prove the agreement for a specified sum.' I presume he means to be understood as saying that the defendant may or may not give notice at his pleasure; but if he gives none the court will listen more readily to a motion for a new trial on the ground of surprise. That any judge or writer ever intended to lay down the rule as one of pleading I do not believe. There is no color in precedent or principle for saying that a defense striking

7 Lord Ellenborough, C. J., and Lawrence, J., in Barton v. Butler, 7 East, 479.

8 22 Wend. 157. 97 East, 479.

10 King v. Boston, 7 East, 481, note a, A. D., 1789; Farnsworth v. Garrard, 1 Camp. 38, A. D., 1807; Okell v. Smith, 1 Stark. Rep. 107, A. D., 1815; Poutton v. Lattimore, 9 Barn. & Cress. 259, A. D., 1829; Allen v. Cameron, Tyrwh. 907, Cr. & Mees. 832, s. c. A. D. 1833; Strut v. Blay, 2 Barn. & Adolph. 450, A. D. 1831; recognizing Connard v. Gillis, 7 East, 480, 481, and see Cousins v. Baddow, 1 Gale, 305.

11 Vol. 1, p. 79.

directly at the whole cause of action need be be pleaded in an action of assumpsit; and there is still less ground for saying that a partial defense-matter merely to mitigate damages should be pleaded. A partial defense can never, according to our cases, be introduced by a plea, and the universal rule both in England and this State is, that where a matter cannot be pleaded it may be given in evidence.12 I am satisfied that to require notice of a defense by way of recoupment in any case would be a departure from principle, from precedent, and all the analogies of pleading. The truth is as remarked by Mr. Justice Bronson in Butterman v. Pierce, the doctrine of recoupment is of recent origin. It would not have been surprising therefore, after the remarks in Barton v. Butler, 18 had some judges required a plea or notice. The cases fluctuated for some time both in England and in this State on the question of whether the doctrine itself should be received into the law. About as much has been said on the point of notice in one country as in another; but not enough in either to give any serious countenance to the idea that it is necessary. On the whole I am satisfied that the plaintiff's contract having been broken as to time, formed a good ground for claiming damages by way of recoupment; and that the defense was admissible under the general issue.'

This opinion was rendered in May, 1843; and though a majority of the court held that 'evidence by way of recoupment is not admissable, unless notice of the defense be given, but if notice of the defense is given, evidence by way of recoupment may always be given under the general issue of assumpsit,' yet the real questions to be considered in determining whether recoupment can be given in evidence under the general issue in assumpsit, and whether in any or in every case, where such defense is put in under the general issue, are so well presented in this opinion of Cowen, J., that I have thought proper to quote largely from it. The opinion of the majority of the court given by Bronson, J.,14 is as follows: 'Although it may

12 Herkemer Manufacturing and Hydraulic Co. v. Small, 21 Wend. 273, 277; Wilmarth v. Babcock, 2 Hill, 194, 196.

13 7 East, 479. 14 5 Hill, 81.

never have been directly and necessarily decided that the defendant must give notice of his intentions to recoup damages, it has often been assumed by the courts of this State that notice must be given; and such appears to be the general opinion of the profession. Very few cases have fallen under my observation where the defense was attempted without notice. If it must be regarded as an open question, then upon principle, I think notice should be required. The defendant often has an election either to bring a cross action or set up his claim by way of recouping damages; and without a notice the plaintiff may be surprised on the trial by a defense which he is wholly unprepared to meet. There can be no hardship on the defendant in requiring him to give notice, while a different rule would be likely to work injustice. I am aware that notice is not necessary when the defense goes to the whole consideration of the promise on which the plaintiff sues. Such a defense shows the plaintiff has no cause of action, and is fairly covered by the plea of non assumpsit. But it is not so when, as in this case, the defense admits the plaintiff has a right to sue, and seeks to recoup damages on the ground that the plaintiff has failed to perform some stipulation in the contract which was obligatory upon him. In such case notice must be given. But the defense seems to have been rejected on the ground that it was not, in its own nature, admissable. The want of notice was not mentioned in the court below. On this ground I agree that the judgment should be reversed.

"These are the views of the New York courts. 15 It seems to me, that those courts which held formerly, that recoupment was only the right of deducting from the amount, which the plaintiff claimed, on the ground that the damages, which he claimed in an action of assumpsit, were too much, and his damages were really not as high as he alleged, would of course hold that the damages so claimed could be reduced under the general issue of non assumpsit without any sort of notice to the plaintiff, that such reduction of the amount of the damages claimed by the plaintiff would be insisted on by the defend

ant in the trial; and that in a case of this character no notice would now be required to be given to the plaintiff. But when a court held, as the courts do now generally, that the defendant may recoup, whenever the demands of both parties spring out of the same contract or transaction, and the entire contract is opened, so far as is necessary to determine the plaintiff's right to damages, and the amount of the defendant's cross-claim, if the defendant chooses in the action of assumpsit brought by the plaintiff to set up such claim by way of recouping damages instead of bringing a cross-action, as he might, which is the character of the case before us, such court should hold, that the defendant must give the plaintiff notice, that he will on the trial of the case on the general issue seek to recoup such damages; for otherwise not only might the plaintiff be surprised, but it would be difficult or impossible, if a cross-suit was afterwards brought by the defendant against the plaintiff, for him to show that in point of fact the damages claimed by the defendant in the last suit brought by him against the plaintiff were really recouped in the first suit. These views we are disposed to adopt as most in accord with reason and justice, and as sustained by the current of authorities.16

"The defense of recoupment should never be set up by a plea. If the defense struck directly at the whole cause of action, it might be made under the plea of non assumpsit. If it were a partial defense, it could not be introduced by plea, and as it cannot be introduced by plea at common law, therefore it may be introduced under the plea of the general issue of non assumpsit.17 It has been decided in a number of cases in the Court of Appeals of Virginia, that prior to the statute of 1831, before quoted, no special plea could be filed by a defendant setting up as an abatement or satisfaction of the plaintiff's demand, that he had violated the obligation on his part imposed on him by the contract, or that the consideration failed, or that fraud and deceit

16 See Babcock v. Trice, 18 Ill. 420; Robertson v. Davenport & Peterson, 27 Ala. 575; Steamboat Wellsville v. Geisse, 3 Ohio, 333; Satchwell v. Williams, 40 Conn. 371; Upton & Co. v. Julian & Co., 7 Ohio, 95; Fowler & Moon v. Isaac B. Payne, 49 Miss. 32; Rogers v. Humphrey, 39 Maine, 382; The Methodist Episcopal Church of East Saginaw v. Ladd, 22 Mich. 280.

17 Barber v. Rose, 5 Hill, 80; Steamboat Wellsville v. Geisse, 3 Ohio, 333; Nichols v. Dusenbury, 2 Com 283.

had been practiced by the plaintiff in making the contract sued upon, on which his suit was based; in other words that he could not set up the defense of recoupment by plea.18 It was because of decisions of this character that the act of 1831 was passed, which allows special pleas in cases of this sort. The cases named, in which special pleas are allowed, include certain cases, in which, according to the views I have expressed, the facts might have been given in evidence as a defense under the general issue of non assumpsit accompanied with notice to the plaintiff. I do not understand this act of 1831 allowing special pleas in certain cases, where the defense is recoupment, to exclude the defendant from making this defense under the general issue of non assumpsit accompanied with notice thereof to the plaintiff.

"Applying the law as thus stated to this case, it seems clear that the defense, which the defendant sought to set up by special pleas, could properly have been set up under the general issue of non assumpsit accompanied with notice to the plaintiff of what damages the defendant sought to recoup. The circuit court therefore did not err in permitting the defendant to file the notice of recoupment, when he pleaded non assumpsit."

18 Taylor v. King, 6 Mumf. 358; Wyche v. Macklin, 2. Rand. 426; Tomilson's Adm'r v. Mason, 6 Rand. 169.

THE LAW OF ANCILLARY ADMINISTRATION.

It is well settled that personal property has no locality. It follows its owner from place to place, and is governed by the law of his domicil. This rule applies equally to cases of gift, testamentary disposition, and intestacy. Hence, in the latter instance, the final settlement of an estate must be made in accordance with the law prevailing at the place where the intestate had his home at the time of his death. But in the meantime, it very frequently happens that the decedent leaves assets, and perhaps creditors, in each of sev

1 Wilkins v. Ellett, 9 Wall. 740; Holcomb v. Phelps, 16 Conn. 127; Vroom v. Van Horne, 10 Paige, 549; Holmes v. Remsen, 4 Johns. Ch. 460; Petersen v. Chemical Bank, 32 N. Y. 21; Succession of Thomas, 16 Reporter, 234.

eral jurisdictions. In that event, it is customary to raise an administrator upon his estate in each State or country, for reasons which will appear further on. Letters may be granted to different persons, or the administrator at the place of domicil may himself take out letters in each place where it is necessary. But in either case the administration at the home of the deceased is called the

principal, primary or domiciliary; that in any foreign jurisdiction is denominated ancillary, auxiliary or subsidiary. This use of terms is perhaps somewhat unfortunate, as it seems to imply a dependence or subservience of one administrator to the other. In point of fact each is entirely independent of the other." Judge Story says: "I have no objection to the use of the terms principal and auxiliary, as indicating a distinction in fact as to the objects of the different administrations; but we should guard ourselves against the conclusion that therefore there is a distinction in law as to the rights of the parties. There is no magic in words. Each of these administrations may properly be considered as a principal one, with reference to the limits of its exclusive authority; and each might, under circumstances, be justly deemed an auxiliary administration. If the bulk of the property, and all the heirs and legatees and creditors were here, and the foreign administration were only to recover a few inconsiderable claims, that would most correctly be denominated a mere auxiliary administration for the beneficial use of the parties here, although the domicil of the testator were abroad. converse case would of course produce an But I am yet to learn what opposite result. possible difference it can make in the rights of parties before the court, whether the administration be a principal or an auxiliary administration."'8

The

Since the administrators are thus mutually independent, it follows as a legal consequence that there is no privity between them. Thus it is said, in a Massachusetts case, that each derives his authority from, makes his settlement in, and is discharged by, the court that appointed him; neither possesses any au

2 Holcomb v. Phelps, supra; Fretwell v. McLemore, 52 Ala. 124; Burbank v. Paine, 17 La. An. 15. 3 Harvey v. Richards, 1 Mason, 381.

4 Taylor v. Barron, 35 N. H. 484; Low v. Bartlett, 8 Allen, 259; Ela v. Edwards, 13 Id. 48.