payment is to be made, it has been held that it may be released by the person creating the obligation. Kelly v. Roberts, 40 N. Y. 432. But that was deemed to result from the circumstance that no privity, under those circumstances, existed between the grantee and the person whose debt was agreed to be assumed by him. A clear implication is to be derived from the opinion of the court in that case, that a different conclusion would have been re quired if the creditor had appeared to have accepted the substituted liability. The only authority in which it has been held that notice and ac ceptance of the liability did not prevent the grantor from releasing the grantee from the performance of the agreement to pay, is that of Stephens v. Casbacker, 15 N. Y. Sup. Court Rep. 116. But that was decided by a divided court, and seems to be opposed to the intention and effect of the agreement made, after it has been followed by the acceptance of the creditor. In deciding the case of Garnsey v. Rogers, 47 N. Y. 233, it was said by Judge Rapello, in the course of the opinion of the court, which was delivered by him, that where such an assumption is made on an absolute conveyance of land, it is unconditional and irrevocable. The grantor can not retract his conveyance, or the grantee his promise or undertaking. Ib. 242. Which, however, was probably designed to be subject to the understanding that the agreement should first come to the knowledge of, and be accepted by, the creditor whose debt was to be paid. For, before that there would be no privity of contract be-tween the parties immediately interested in the new agreement. But by such acquiescence and acceptance the creditor makes himself a party to the agreement intended for his benefit. He adopts the promise made to the grantor for him, and is afterwards entitled to insist upon the performance of it. Upon this subject Earl, Com'r. in his opinion in the case of Thorp v. Keokuk Coal Co., supra, said that, "it is sufficient if the promise be made by the promisor upon a sufficient consideration passing between him and his immediate promisee, and when the third person adopts the act of the promisee, in obtaining the promise for his benefit, he is brought into privity with the promisor, and he may enforce the promise as if it were made directly to him." Id. 257. The right of action, upon the promise in that event, rests in the person whose debt has been agreed by it to be paid by the person making it. And from that time the only person who can release and discharge it is the individual in whom the right of action to enforce it has become vested. The obligation then becomes a subsisting right of action, which he can not afterwards be deprived of by the unauthorized act of the party inducing the promise. Green v. Burke, 23 Wend. 490, 496; MeKnight v. Dunlop, 1 Selden. 537. It was there held to be a general legal proposition that, "whenever a right of action has once vested in a party, it can only be destroyed by a release under seal, or by the receipt of something in satisfaction of the wrong done." Id. 544.

The release here referred to must, of course, be that of the party vested with the right. The right

of action can properly be discharged only by him, or some one acting under his authority. And that was not done in this case. The weight of authority, as well as the sound reason of the case, are both opposed to the legal validity of the instrument upon which the defendant rested for his defense. The transaction had gone beyond the power of the grantors in the deed, by the acceptance of the liability imposed upon the grantee for the benefit of the mortgagee. For that reason the case of Stephens v. Casbacker, supra, should not be followed, but the judgment appealed from should be af firmed.

DONATIO CAUSA MORTIS- INDORSEMENT OF CERTIFICATE OF DEPOSIT.

HASSELL v. BASKET.

United States Circuit Court, District of Indiana, (ctober Term. 1878.

Before Hon. WALTER Q. GRESHAM, District Judge.

ONE C, the owner of a bank certificate of deposit, some sixty days before his death, indorsed it as follows; "Pay to Martin Basket, of Henderson, Ky., and no one else, then, not till my death. My life seems to be uncertain; I may live through this spell, then I will attend to it myself. (Signed) Chaney," and delivered it to said Basket. Held, that the latter could not hold it as a valid donatio causa mortis nor as a testamentary gift.

A. & J. E. Iglehart and T. T. Foreman, for complainant; Shackelford & Richardson, Denby & Kumler, J. W. Gordon and J. J. Turner, for respondents. GRESHAM, J.:

The bill in this case alleges that Hillery M. Chaney, a citizen of Sumner county, Tennessee, on the 8th day of September, 1875, deposited in the Evansville National Bank, at Evansville, Indiana, $23,514.70, taking a certificate of deposit therefor: that in January, 1876, said Chaney suddenly died. and the plaintiff was appointed his administrator; that the defendant, Martin Basket, who was a nephew of said Chaney, by a fraudulent combination with one Bryan, whose wife was a niece of said Chaney, obtained possession of said certificate of deposit, and refused to surrender the same on demand; that no consideration of any kind passed from said defendant Basket to said Chaney for said certificate; that said Basket claimed to hold the same by gift from said Chaney, but at the time of such alleged gift, and for a long time previously, the said Chaney was of unsound mind. The National Bank, its president and cashier, and Messrs. Shackelford and Richardson, attorneys, who, as the counsel of the defendant, Basket, have possession of the certificate, are made defendants.

The defendant, Basket, by his answer admits the possession of the certificate, and alleges that the said Chaney, sixty days before his death, then being in full possession of all his mental faculties, but in apprehension of death from a disorder with which

And delivered said certificate so indorsed to the defendant, Basket; that said Chaney died of said disorder, and said certificate, so indorsed, remained in his (Basket's) possession until he placed it in the hands of his counsel, the defendants, Shackelford and Richardson; and that the certificate was a gift to him in trust, as well for himself as for his brothers and sisters, at his option.

The bank and its officers answered, asking protection of the court in the payment of the money. Basket filed a cross-bill, setting up the gift as in his answer, which the plaintiff answered, traversing the material allegations. General replications were filed to all the answers.

For several years before his death Mr. Chaney had been in failing health, complaining of dyspepsia, and physicians had treated him for that disease. During the sixty days that elapsed from the delivery of the endorsed certificate to Basket until his (Chaney's, death, on the

day of January,

1876, he was generally up about his premises looking after his business, as he had done for mouths previously. It appeared from a post mortem that he had also suffered from consumption. The testimony also conclusively shows that, at the time the certificate was delivered by him to Basket, the said Chaney was not in extremis, and that he did not act in the apprehension of immediate death. On this point there was no serious controversy.

His domicil being in the State of Tennessee, at the time of his death, the laws of that state determine the succession to his personal property. In construing the statutes of Tennessee, relating to wills, the supreme court of that state has held that nuncupative wills must be made in extremis. Hatcher V. Millard, 2 Cold. 30; Gwin v. Wright, 8 Humph. 639. Section 2,165, of the Tennessee code, declares that no nuncupative will is good unless proved by two witnesses present at the making thereof, who were specially requested to bear witness to it by the testator. The endorsement on the certificate has never been probated as a testamentary instrument according to the requirements of the laws of the State of Tennessee. It follows that the defendant, Basket, can not claim the money as a testamentary gift.

The plaintiff, as administrator, is, therefore, entitled to the fund in controversy, unless it belongs to the defendant, Basket, as a gift causa mortis. It would seem that the courts and law-writers have not always been clear in speaking of gifts of this kind.

In Kent's Commentaries, Vol. 2, mar. p. 444, we find the following: "Such gifts are conditioned like legacies, and it is essential to them that the donor make them in his last illness, or in contemplation and expectation of death, and, with reference to their effect after his death, they are good, notwithstanding the previous will, and if he recovers

the gift becomes void." In Story's Eq., sec. 605 and 606, note 1, the gift is thus defined: "It is properly a gift of personal property by a party who is in peril of death, upon condition that it shall presently belong to the donee in case the donor shall die, but not otherwise. To give it effect there must be a delivery of it by the donor, and it is subject to be defeated by his recovery or escape from the impending peril of death. If no event happens which revokes it, the title of the donee is deemed to be directly derived from the donor in his life time, and therefore in no sense is it a testamentary act."

Williams, in his treatise on Executors, in speaking of this kind of gift, Vol. 1, page 651, says: "First-The gift must be with a view to the donor's death. Second-It must be conditional, to take effect only on the death of the donor, by his existing disorder. Third-There must be a delivery of the subject of the gift." In Nicholas v. Adams, 2 Whart. 17, the opinion of the court was delivered by Chief Justice Gibson, who says: "Donatio causa mortis is sometimes spoken of as being distinct from a gift inter vivos; the former having been sometimes supposed to be made in reference to the donor's death, and not to vest before it, but inaccurately, as it seems to me, as this gift, like every other, is not executory, but executed in the first instance by delivery of the thing, though defeasable by reclaimation, the contingency of survivorship or deliverance from peril. The gift is consequently inter vivos." Gifts causa mortis must be of personal property or choses in action actually delivered by the donor to the donee, in apprehension of approaching death from an existing disorder or other impending peril, and death must ensue from existing disorder, or other impending peril, without any complete intermission. without further effort to define such gifts it is sufficient to say that they are not good and are never upheld without certain essential requisites, one of which is delivery, actual or constructive, to the donee, or some one in trust for him, of the subject matter of the gift. If the subject of the gift be capable of actual delivery, the delivery must be actual. Such gifts afford tempting opportunities for fraud, and, therefore, the Roman law requires them to be executed in the presence of five witnesses. And, inasmuch as delivery lessons the opportunity for fraud, it has always been held an absolute requisite to their validity. Money on deposit may be delivered by a delivery of the certificate of deposit, provided there be the intention at the time to transfer to the donee the dominion and ownership. It is now settled that choses in action, whether negotiable or not, may be the subjects of gifts causa mortis. Brunson v. Brunson, Meigs' Rep. 633; Brown v. Moore, 3 Head, 671; Meach v. Meach, 24 Vt. 591; Hanson v. Millett, 55 Me. 184; Cutting v. Gilman, 41 N. H. 151.”

But

The money itself was not delivered to Basket, nor was the certificate so assigned to him as to enable him to get possession of it. With the certificate, as indorsed, he had no right to demand the money from the bank. If, on his demand, the bank had paid the money, such payment would not have

protected the bank against another demand by the donor. The indorsement was not of such a character as to enable him therewith to reduce the money to his possession. He could not, by virtue of the indorsement, have compelled the delivery of the money to him by the bank during the life of the donor. The donor, by the indorsement, had not parted with the possession or dominion of the property. It was still under his control. The language of the indorsement is certainly inartistic, but its meaning is patent. In legal effect it is: "If I die in my present illness, this certificate of deposit shall belong to Martin Basket. When I thus die, and not before, it shall be paid to him." With this clear intention of the donor not to part with his money as long as he lived, it will not do to say that delivery of the certificate was a constructive delivery of the money evidenced by it.

But it is said that the subject of a gift causa mortis vests in the donee only at the death of the donor, and that, therefore, the condition expressed in the assignment would have been delivered with a blank indorsement, or no indorsement at all. It must be conceded that some of the authorities seem to support this view.

A will is the disposition of one's estate, to take effect after his death. Any disposition of property to take effect upon the death of the owner or donor is testamentary. It is of the essence of a bequest that it take effect on the death of the testator. It appears by the very terms of the assignment that no present title or interest in the money could pass to the donee during the life of the donor. No instrument of writing can be both a last will and testament, and a gift causa mortis. The indorsement was testamentary in character, and if it had been properly executed according to the statutes of Tennessee, it doubtless might have been probated as the donor's will. There is a wide difference between a legacy and a gift. Both possession and title must pass to the donee to constitute a gift. This applies as well to gifts causa mortis as to gifts inter vivos. This title must pass inter vivos, or it never can pass, but will go to the donor's legal representative. In a gift inter vivos, the donor reserves no right of revocation; in a gift causa mortis he does. The donee of a gift causa mortis holds the thing given not as bailee of the donor, but as present owner on the condition attached to such gifts. A gift causa mortis ves's in the donee a present but inchoate, or defeasible title until the happening of the event necessary to render it absolute, and therein it differs from gifts testamentary and inter vivos. This question is discussed in Gass v. Simpson, 4 Cold. Tenn. 393. "The property," say the court, must pass at the time and not be intended to pass at the giver's death.

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* * * *

At the death of the donor the title becomes complete and absolute from the date of the gift, and that without any consent or other act on the part of the executor or administrator; consequently. the gift is inter vivos.” Duncan v. Duncan, 5 Littell, 12. In Parish v. Stone, 14 Pick. 198, the transfer of choses in action as gifts causa mortis is discussed. "These cases," said Chief Justice Shaw,

in delivering the opinion of the court, "all go on the assumption that a bond, note or other security is a valid subsisting obligation for the payment of a sum of money, and the gift is in effect a gift of the money, by a gift and delivery of the instrument which shows its existence and affords the means of reducing it to possession."

In the case at bar, the certificate was delivered as the language of the endorsement clearly shows, with no intention of a present gift of the money, with authority to the donee to reduce it to possession. On the contrary, the indorsement was of such a character as to absolutely prohibit the donee from claiming any present title to the money, or any right to reduce it to his possession during the life of the donor.

The decedent lived in Nicholas county, Kentucky, the place of his birth, until 1871, when he was sixty years old. He was married to Miss Hanby in 1832, with whom he lived thirty-six years, and by whom he had seven children, five of whom, one son and five daughters, grew up, married and settled near their parents. During these thirty-six years, by industry, economy and good judgment, an estate worth some $50,000 was accumulated. The evidence shows that the decedent was an eccentric man, and his widow testified that he was always a hard man to get along with. In 1868 he seems to have become fascinated with a woman named Nancy Hyatt, with whom he established immoral relations, which fact became known to the public and his family. The wronged wife's remonstrances and entreaties were of no avail in winning back to his family the faithless and unfeeling husband and father. Not content with the foul injustice already inflicted upon his family, he showed himself utterly insensible to every sentiment of affection and honor by publicly attacking the chastity of his wife and denying the paternity of all but one of his children. It is not pretended that there was the slightest foundation for this monstrous slander, and naturally enough a separation ensued, when the property was divided by agreement, the wife and children getting the home farm, worth about $8,000. Previous to this strange infatuation with the Hyatt woman, the decedent had the respect and esteem of his neighbors, and previous to that time the evidence fails to show that he was not attached to his family. Shortly after the separation and division of the property we find the decedent and Nancy Hyatt in Hancock county, Indiana, where, after a residence of only four months, by a fraud on the jurisdiction of the court, he succeeded in having a decree of divorce entered in his favor, and straightway he and the Hyatt woman went through the formality of a marriage. Immediately after this the decedent and his pretended wife removed to Sumner county, Tennessee, and settled upon a farm, where they separated, after having lived together some two years.

The money on deposit, it is claimed, was given to the defendant Basket, a nephew, when no one was present but the alleged donor and donee, and

the remainder of the decedent's estate all went to other collateral relations. In such a contest it must not be thought strange if the donee is held to the strictest proof of his title. The outraged wife and children who had a natural claim upon the decedent's bounty will not appeal to a court of equity in vain, unless their adversary has established his right to the money in dispute by the most convincing testimony.

The allegation of mental unsoundness is not sustained by the evidence-it would be well for the memory of the decedent if it were.

These views render it unnecessary to consider other questions which were argued with ability by counsel on both sides.

Decree that the certificate of deposit be delivered to the complainant, and that the money evidenced by it be paid to him.

1. LIABILITY FOR INJURY CAUSED BY CHILD FALLING INTO DANGEROUS EXCAVATION - BURDEN OF PROOF. The railway tunnel connecting the Union depot in St. Louis with the Illinois and St. Louis Bridge was, at a point where it was uncovered, and within the line of a public street, left unguarded, exposing a perpendicular wall fourteen feet in depth below the surface of the street. The petitioner, a boy four years of age, strayed away from his home, about two blocks distant, under circumstances not disclosed by the testimony, fell into this excavation, and sustained a fracture of the thigh bone. It appeared: (1.) that his parents were poor and unable to employ a servant to look after him; (2.) that he sustained no other injury except physical pain and suffering; (3.) that the tunnel was in custody of receivers of this court. Held (1.), that the unguarded excavation was a nuisance, the continuing of which rendered the receivers liable to pay out of the fund in their charge damages for any injury of which it was the proximate cause; (2.) that the petitioner was in law incapable of negligence, and that the burden of showing contributory negligence on the part of the parents, such as, imputed to the petitioner, would bar a recovery, rested with the respondents.

2. THE MERE FACT THAT A CHILD four years of age strayed a distance of more than two blocks from home at play with other children, is not of itself evidence of contributory negligence on the part of its parents.

3. DAMAGES MAY BE GIVEN in such a case where there is no other substantial element than physical suffering.

This action was brought in the form of an intervening petition in a suit in equity, which had been brought to foreclose a mortgage. This peculiar

form of suit was necessitated by the fact that the property, the negligent construction of which produced the injury complained of, was in the hands of receivers appointed by this court. By consent of counsel the petition was referred to Seymour D. Thompson, Esq., one of the Masters in Chancery of the court, who reported as follows: "From the testimony I find the following facts: That, on the first day of November, A. D. 1876, the receivers of this court, John P. Morgan and Solon Humphreys, were operating the structure known as the St. Louis Tunnel, connecting the Illinois and Saint Louis Bridge with the Union Depot, in the city of St. Louis. That the said tunnel, as originally constructed, debouches from beneath the ground in the middle of Eighth street, in St. Louis, at the crossing of Clark avenue, and runs southwardly in the centre of Eighth street to Spruce street, which crosses it by means of a bridge; from which point said tunnel continues south, a short distance, and then gradually deflects to the west, so that the western side of it crosses the western line of Eighth Street, at a point one hundred and forty-seven feet south of the Spruce street bridge. The uncovered portion of said tunnel thus runs within the limits of Eighth street for a distance of two blocks. The wall of said tunnel is surrounded by a flat coping of stone about on a level with Eighth street, along which is built an iron railing, designed to protect men and animals traveling along the street from falling into it. At a point about three feet north from where the western wall of the tunnel intersects the line of Eighth street, in deflecting to the west, as already stated, this railing, at the time of the accident in controversy, stopped. At the point thus left unguarded within the line of Eighth street, the distance to the bottom of the tunnel was about fourteen feet. Beyond the point where the western wall of the tunnel crosses the western line of Eighth street, the coping descends in the form of a stairway, at an angle of 45°. A rough sketch returned into court, marked "Exhibit A to Testimony," gives a fair idea of the geography of the tunnel, as thus described. The road which runs along the western side of the open tunnel in Eighth street is, by this curve in the tunnel, deflected to the west, over private ground, and is a constantly traveled thoroughfare.

"On the date already mentioned, November 1st, 1876, the intervening petitioner, John Hagan, was between three and four years of age. He lived with his parents upon Clark avenue, near Ninth street, a little more than two blocks distant from the point where the western wall of the tunnel crosses the western line of Eighth street, as already indicated His parents were poor. His mother was obliged to do her own housework, and they were unable to employ a nurse or servant to take care of him. He strayed from home, and, while at play with other children upon the unguarded coping of the tunnel, at the point already indicated, just within the line of Eighth street, fell into the tunnel and received a simple fracture of the thigh bone. This fracture is well healed; the leg is not shortened nor the limb deformed except by

a slight callous, which will gradually be absorbed. I find from the evidence that the petitioner received no other injuries from this fall than physical pain and suffering.

"Upon this state of facts three questions would seem to arise:

1. Were the receivers guilty of negligence in permitting a portion of the wall of the tunnel to remain unguarded at a point within the line of a public street constantly traveled, where the wall was perpendicular, where the excavation was fourteen feet deep, and through which trains were constantly passing? On this point

I entertain no doubt. It seems to me clear that the tunnel company, leaving a portion of so dangerous an excavation unguarded, at such a point, were the authors of a public nuisance, and that the receivers were continuers of it.

"2. Was there contributory negligence imputable to the plaintiff, such as should bar a recovery of damages? Childen at the tender age of the plaintiff at the time of the injury complained of, are in law incapable of negligence; but the weight of authority is that the negligence of the parent, guardian, or other person lawfully in custody of a child which is injured, will be imputed to the child so as to bar a recovery of damages; yet some courts deny this, and upon grounds which seem entited to much consideration. Whatever may be the correct rule on this subject, it is clear upon authority that parents situated as the parents of the plaintiff were-poor, the father absent at his daily labor, the mother obliged to do her own house work, unable to employ a nurse or servant to attend the child when upon the street-will not be deemed guilty of such negligence as will prevent a recovery of damages if the child is injured through the negligence of the defendant while straying upon the street unattended.4

(1.) O'Flaherty v. U. Ry. Co., 45 Mo. 70; Hartfield v. Roper, 21 Wend. 615; Mangam v. Brooklyn R. R. Co., 38 N. Y. 455; North P. R. Co. v. Mahoney, 57 Pa. St. 187.

(2.) Hartfield v. Roper, 21 Wend. 615; Waite v. N. E. Ry. Co., 28 L. J. (Q. B.) 258: O. & M. Ry, Co. v. Stratton, 78 Ill. 88; P. & F. W. Ry. Co. v. Vining, 27 Ind 513; Lafayette, etc., Ry. Co. v. Huffman, 28 Ind. 287; I. M. Ry. Co. v. Rowen, 40 Ind. 455; Kass v. Park, 40 Cal. 188; Fallon v. Cent. Park, etc., Ry. Co., 64 N. Y. 13; Mangam v. Brooklyn Ry. Co., 38 N. Y. 455; Callahan v. Bean, 9 Allen, 401; Wright v. Malden, etc., Ry. Co., 4 Allen, 283; Munn v. Reed, 4 Allen, 431; L. & P. Canal Co. v. Murphy, 9 Bush. 522: Down v. N. Y. Central Ry. Co., 47 N. Y. 83; Drew v. Sixth Av. Ry. Co., 26 N. Y. 49.

(3.) Daly v. Norwich, etc., Ry. Co. v. Conn. 591; Gov. St. Ry. v. Herndon, 53 Ala. 70; Norfolk Ry. Co. v. Ormsby, 27 Gratt. 455: Philadelphia, etc., Ry. Co. v. Long, 75 Pa. St. 257.

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(4.) "People in the situatlion of life of those who had custody of the child," said Wagner, J., in a similar case, can not always attend to it strictly; and if it escapes from them unawares, it must not be injured simply because it so escapes." Isabel v. Han., etc., Ry. Co., 60 Mo. 483. In another case the same learned and humane judge, discussing this question, said: "To say that it is negligence to permit a child to go out to play, unless it is accompanied by a grown attendant, would be to hold that free air and exercise should only

"3. In such a case will damages be given on account of physicial suffering, where there has been no direct pecuniary loss? Upon this point I have some difficulty; but the tendency of the courts seems to be to sustain verdicts where the plaintiff received no substantial injury except physicial pain and mental suffering, unless the verdicts are so excessive as to create a presumption that that the jury acted from passion or from prejudice;5 and whether such damages are called 'exemplary damages,' or 'smart money,' or 'compensation for injured feelings," seems to be more nearly a debate about terms and definitions than about any substantial differences which are capable of being traced and maintained in the administration of justice. All the American courts seem agreed that be enjoyed by the wealthy, who are able to employ such attendants, and would amount to a denial of these blessings to the poor." O'Flaherty v. Union Ry. Co., 45 Mo. 74. In a case very similar to this, another very learned and capable judge used the following language: "The doctrine which imputes the negligence of the parents to the child in such a case as this is repulsive to our natural instincts, and repugnant to the condition of that class of persons who have to maintain life by daily toil. It is not the case where the positive act of a parent or guardian has placed a child in a position of danger necessarily requiring the care of the adult to be constantly exercised, as where a parent takes a child into the cars, and, by his neglect, suffers it to be injured by straying off upon the platform. But here a mother, toiling for her daily bread, and having done the best she could in the midst of her necessary employment, loses sight of the child for an instant, and it strays upon the track. With no means to provide a servant for the child, why should the necessities of her position in life attach to the child, and cover it with blame? When injured by positive negligence, why should it be without redress? A negligent wrong is done; it is incapable of contributing to it; then why should the wrong not be compensated?" Agnew, J., in Kay v. Penn. Ry. Co., 65 Pa. St. 276. The same views are re-asserted in Phila., etc., Ry. Co. v. Long, 75 Pa. St. 257.

(5.) Sedgwick on Damages, 6th Ed., 699, note 2; Trimble v. Spiller, 2 Munroe, 394; Huckle v. Money, 2 Wils. 205; Beardmore v. Carrington, 2 Wils. 244.

(6.) Hendrickson v. Kingsbury, 21 Iowa, 378; Detroit Post Co. v. McArthur, 16 Mich. 447; Fay v. Parker, 53 N. H. 342, 381: McKinney v. C. & N. W. R. Co., 44 Iowa, 321. Thus, in Littlefield v. Atlantic & Pacific R. Co., Intervention of McAuley, the learned district judge, sitting in this court, awarded an old man $500 as damages on account of having been wrongfully expelled from a passenger train of the receivers by its conductor, and compelled to walk three miles, crossing a high and dangerous bridge, to get to his home. This was held a case for exemplary damages. On the other hand, in West v. Forrest, 22 Mo. 344, the defendant, in beating a female slave, accidently inflicted some blows upon her mistress, the plaintiff. There does not appear to have been any attempt to prove that the plaintiff had suffered any direct pecuniary loss. The court sustained a verdict for $400, saying: "The plaintiff's case was fully made out before the jury, and by their verdict of four hundred dollars they exhibited their sense of such a wrong, and properly vindicated the injuries and wounded feelings of the plaintiff." In Crocker v. Chicago & N. W. R. Co., 36 Wis. 657, a railway conductor kissed a female passenger. Here was certainly no direct pecuniary loss; but the com. pany was compelled to pay $1,000 for it. The damages were expressly placed upon the ground of compensation.