4:50
FEDERAL REPORTER.
sureties in such a suit for these purposes, fully sustained. The further question is made, which is this: The administrator of this estate presented a claim in his own behalf, and, for the purposes of the settlement of that claim, a temporary administrator was appointed, called under the statute, I believe, an attorney to represent the heirs. There was a hearing upon that matter, and the claim was allowed. It is now insisted that the sureties of the administrator are not responsible for any fraud committed in that transaction. The bill, however, charges collusion and fraud on the part of the administrator in connection with this transaction, and it will depend, I think, altogether on the proof as to whether he is liable in his official capacity; and if liable, of course his sureties are liable. That matter can be determined only after the proofs are submitted. The demurrer to the bill is overruled.
JEFFRIES, Adm'r, v.
UNION
MUT. LIFE INs. Co. January 26, 1880.)
(Ot"rcuit Oourt, E. D. Missou";. .It..
LIFE INsuRANCE-WARRANTy-AvERMENT OF APPLICANT THAT HE IS BINGLE l\IAN.-The averment of a married man, in an application for life insurance, that he is a single man, amounts to an absolute warranty. ATTORNEY AT LAW-COMPROMISE OF SmT-ExpRESS AUTHORITYSATISFACTION OF JUDGMENT.-The entry of the satisfaction of judgment on the record of the court will not be set aside, where such sati!!faction was entered, pending a writ of error to the supreme court in behalf of the defendant, upon part payment of the judgment, under a comprolllisewith the duly authorized attorneys of the plaintiff, although Buch entry of satisfaction was not made in open court, and the original plaintiff had died pending such compromise, and the authority of the . attorneys had not been ratified by the administrator de bonis non.
Motion to set aside entry of satisfaction of judgment. Waldo P. Johnson and John Flournoy, for plaintiff. John R. Shepley, for defendant. TREAT, J., (orally). I have had under consideration a matter concerning which there are a. great many incidents. I am not disposed to go into those matters at any consider-
JEFFRIES V. UNION MUT. LIFE INS.
co.
451
able length. A suit was brought in this court, by an aa.m."in:. istrator named Jeffries, on a life insurance policy. The case went from this court to the supreme court of the United States, and the supreme court reversed this court on this proposition. The averment made in the application by the insured was that he was a single man and not a married man. This court held, in the light of the authorities as they were then supposed to exist, that that question should not be held as an absolute warranty, but, connected with the facts, to be submitted to the jury, whether it was a matter material to the case. The supreme court held the sharp doctrine that it was a warranty, and if he represented himself as single and was married, there could be no recovery. The case came back for trial and evidence was produced to show that the representation of the plaintiff was written down as an answer by the agent of the underwriter, he, the agent, supposing that to be the man's condition, without relying upon his statement or paying any attention to it. The matter came up for trial and the jury found for plaintiff, and the court set aside the verdict, a.s it did not think the testimony sufficient to establish the fact. A second trial was had-a fuller trial-and a verdict was again rendered for the plaiutiff, and the case was taken by the insurance company to the supreme court of the United States. In the ordinary course of decisions there this case would not have been reached, possibly, for some years. The counsel for the insured then, after oorrespondence "\\lith the insurance company, agreed to take what was about twothirds of the amount of the judgment, in round numbers. The proposition being accepted, thereupon counsel did receive the sum of money pursuant to the compromise, to-wit, the two-thirds. and entered satisfaction of the judgment. The question presented to the court is upon a motion to set aside that entry of satisfaction, first, because a counsel employed to prosecute a case has no right to compromise it. Such is the view of the supreme court of the state of Missouri; but the rulings are largely in conflict. But this case has another aspect: the original plaintiff entered into a spe-
