The defendant requested the plaintiff to sign a note to one Wentworth as surety for his son, promising the plaintiff that he would see the note paid and indemnify him. The plaintiff, in consideration thereof, relying upon the defendant's promise, signed the note. The defendant moved

that the court order a verdict because the agreement, not being in writing, was within the statute of frauds. The court denied the motion subject to exception. Verdict for plaintiff.

new.

BINGHAM, J., delivered the opinion of the court: Is the promise of the defendant within the provision of the statute of frauds, that no action shall be brought to charge any person upon a special promise to answer for the debt, default, or miscarriage of another unless the same is in writing? Gen. Stat., ch. 201, sec. 13. The question is not It is old and vexatious. The authorities are not uniform. The English are hopelessly in conflict, and the American courts are in the same condition. The direct authorities are nearly equally divided. Those deciding that the promise is within the statute insist that if the surety became such solely upon the promise of the promisor, still the law raises an implied promise of indemnity by the principal from the existence of the relation of principal and surety, to which the express promise of the promisor is collateral, and, therefore, within the statute. Easter v. White, 12 Ohio St. 219; note to Cripps v. Hartnoll, 4 Best & S. 414; Browne's Statute of Frauds, ch. 10, secs. 158, 160, and authorities cited; Green v. Cresswell, 10 Ad. & El. 453.

The reasoning of the courts which hold that the promise is not within the statute is not always the same. The more common is that the promise must be made to the creditor to be within the statute; that a promise to the debtor to pay his debt to the creditor, or to a surety to indemnify him for becoming surety for a third person to a fourth, is an original and not a collateral undertaking when the promisee acts solely on the promise of the promisor. Vogel v. Melms, 31 Wis. 306; Aldrich v. Ames, 9 Gray, 76; Alger v. Scoville. 1 Id. 391, 395; Pike v. Brown, 7 Cush. 133, 136; Chapin v. Lapham, 20 Pick. 467; Blake v. Cole, 22 Id. 87; Beaman v. Russell, 20 Vt. 205, 216; Harrison v. Sawtell, 10 Johns. 242; Chapin v. Merrill, 4 Wend. 657; Staats v. Howlett, 4 Denio, 559; Barry v. Ransom, 12 N. Y. 462, 467; Conkey v. Hopkins, 17 Johns. 113; Reed v. Holcomb, 31 Conn. 360; Johnson v. Gilbert, 4 Hill, 178; 3 Parsons on Contracts, 21, note P; Smith v. Sayward, 5 Greenl. 504, 507; Tarr Northey, 17 Me. 113; Dunn V. West, 5 B. Monroe, 376; Thomas v. Cook, 8 B. & C. 728; Eastwood v. Kenyon, 11 A. & E. 438; Hargreaves v. Parsons, 13 M. & W. 569, 580; Reader v. Kingham, 13 C. B. (N. S.) 344; Cripps v. Hartnoll, 4 Best. & S. 414.

v.

These and other authorities that might be cited show that the conflict is so great, and the division so equal, that if the question were an open one a satisfactory conclusion might be difficult. But it

1. APPEAL-FINAL JUDGMENT OF STATE COURT. A judgment of the Court of Appeals of a State overruling a demurrer, giving defendant leave to withdraw the demurrer and to answer, and remitting the proceedings to an inferior State court to be proceeded upon according to law, does not terminate the litigation between the parties on the merits, and is not, therefore, such a final judgment as is reviewable here. Bostwick v. Brinkerhoff, U. S. S. C., October 23, 1822; 5 Morr. Trans., 5.

2. APPEAL FROM SUPREME COURT OF THE DISTRICT OF COLUMBIA-PRACTICE.

1. After a term at which a final judgment on a verdict has been rendered by one justice of the Supreme Court of the District of Columbia has been adjourned without day, and an appeal taken from his judgment to the general term, but no bill of exceptions or case stated filed, a new trial can not be granted upon a case stated filed by the judge at a subsequent term. 2. When a verdict and judgment for a plaintiff have been wrongly set aside, and the error appears of record, he may, without any bill of exceptions, avail himself of it upon a writ of error to reverse a final judgment afterwards rendered against him. 3. When a judgment for a plaintiff in a personal action has been erroneously set aside, and a subsequent final judgment against him is brought up by writ of error, pending which he dies, this court will affirm the judgment in his favor nunc pro tunc. Coughlan v. District of Columbia, U. S. S. C., October 30, 1882: 5 Morr. Trans., 20.

3. APPEAL-JURISDICTIONAL AMOUNT-DISMISSAL. A motion to dismiss an appeal as not involving $5,000, granted, the interest of the appellant being only one undivided twentieth part of the land in controversy, and no affidavit of the value having been filed, although notice of the motion to dismiss had been served five months ago. Parker v. Morrill, U. S. S. C., October 23, 1882; 5 Morr. Trans., 2.

4. APPEAL-WHEN LIES From Decree IN EQUITY. 1. An appeal may lie from a decree in an equity

cause, notwithstanding it is merely in execution of a prior decree in the same suit, for the purpose of correcting errors which originate in it; but when such decrees are dependent upon the decree to execute which they have been rendered, they are vacated by its reversal; in which case the appeal which brings them into review will be dismissed for want of a subject matter on which to operate. 2. A personal decree for a deficiency, due upon a mortgage debt, remaining after execution of a decree of foreclosure and sale, is of this description; but when rendered in favor of other parties than the complainant will be reversed for the same error that required the reversal of the decree of fareclosure and salę. Chicago, etc. R. Co. v. Fosdick, U. S. S. C., October 23, 1882; 5 Morr. Trans., 15.

5. CONSTITUTIONAL LAW-LOCAL OPTION-REVOCACATION OF LICENSE.

In a prosecution for violation of the local option. law, the defense was that the defendant having purchased an occupation license to sell intoxicating liquors for twelve months, and, having paid the tax therefor, the State has no power by law to revoke the license; and that, if it has such power, it can only be exercised in a direct manner by a statutory enactment expressly revoking the license. Held, that the authorities bearing upon the question are conflicting, and it is still an open question, Willson, J., deciding, however, that the weight of authorities sustains the proposition that the legislature has full control of the subject, and can revoke occupation licenses at pleasure, and that whenever prohibition is declared in any locality, it has the effect to revoke all licenses for the sale of intoxicating liquors within that locality; Hurt, J., dissenting. State v. Robinson, S. C. Tex., Austin Term, 1882; 1 Tex. L. R., 542. CONTRACT-CHURCH SUBSCRIPTION MATERIAL

ALTERATION.

Appellant signed a church subscription list, which read: We, the undersigned, promise to pay the following subscriptions for a new church, etc., placing $200 opposite his name. This undertaking, though joint in form, is several, as, by placing separate sums opposite their names, it is manifest that the subscribers intended it to be several. 2. Pars. Cont. 533; 18 Ind. 137; 9 Cush. 537; Add. Cont. (3d Am. ed.) 96. Each subscriber could be sued separately without joining the oth

A sale by one corporation of all its property to another corporation is, as against creditors not assenting thereto, fraudulent and void. Hibernia Ins. Co. v. St. Louis, etc. Transp. Co., U. S. C. C., E. D. Mo., 14 Rep., 610.

8. CRIMINAL LAW - HOMICIDE - EVIDENCE THAT PRISONER WAS SUFFERING LIFE SENTENCE. The defendant was charged with murder. He was at the time under a sentence of life imprisonment. Held, that the fact of his imprisonment for life was admissible for the purpose of aiding the jury in the exercise of their discretion given them by the statute, of imposing the death penalty or life imprisonment upon a finding of murder in the first degree. People v. Hong Ah Duck, S. C. Cal., Sept., 1882; 14 Rep., 613.

10. EASEMENT ADJOINING OWNERS RIGHT OF SUPPORT.

Purchasers of adjoining houses from a common owner are presumed to contract with reference to the condition of the property at the time of the sale, and when the house of one purchaser is supported by a wall upon the lot of the other, the right of the former to the use of the wall for the support of his house is an easement, with the enjoyment of which the owner of the lot upon which the wall stands has no right to interfere by tearing away the wall or so altering it as to injure his neighbor's house. Henry v. Koch, Ky. Ct. App., Oct. 3, 1882; 4 Ky. L. Rep., 292.

11. EQUITY - HUSBAND'S DEED CONVEYING ALL HIS PROPERTY TO SECOND WIFE. Nicholas D. Broadley, in 1875, being then about seventy years of age, conveyed by deed to his second wife, all the lands he owned, about 300 acres, and all his personal property, for the expressed consideration of $2,000, which was never paid by her, and which it was not the intention she should pay. He died in 1876. The plaintiff, Elizabeth Wood, is the only living child of said Broadley by his first marriage; and the defendant, Virginia, is the only child of the last marriage. The object of the suit is to set aside the deed, upon the ground that Broadley, when it was executed, was old and infirm, and had not mental capacity to make the deed, and that the same was obtained by an undue influence of his wife, which she had and unduly exercised over him. The issue, and only issue submitted to a jury was, "had Broadley, at the time he made the deed, sufficient capacity to make the deed?" The jury found affirmatively, which the court adopted, and judgment rendered for defendant. Held, that though gifts or grants of property by husband to wife are evidently bad at law, yet courts of equity will uphold them, in many cases, when they would be held bad at law; that a husband can make a reasonable provision for his wife, and though for that purpose he gives her all his property, if there is no reason to suspect fraud, it will be sustained in equity. Though the deed embraced all the husband's property, real and personal, there was no averment in the petition that the provision for the wife was unreasonable, and that the deed stands good whether the consideration expressed was the real consideration or not, in the absence of evidence to es tablish such undue influence or other grounds up. on which it is assailed. Wood v. Broadley, S. C. Mo.

12. EVIDENCE-SECONDARY EVIDENCE TO ESTAB• LISH WRITTEN CONTRACT.

1. Ordinarily the existence of a written contract, alleged to have been lost, or not in the possession of the party attempting to enforce it, and when not in his power to produce, it must be established by the attesting witnesses, if any, or if not, by those who saw the contract, and were either present when it was entered into, or recognized the handwriting of the parties to it after it bad been executed and delivered. 2. Contents of a writing may be established by secondary evidence, where it has been trusted or traced to the possession of a party interested in suppressing it, and—

If such party fails or refuses to produce it, every intendment and presumption is to be made against him, as he might remove all doubt on the question by producing the writing. Benjamin v. Ellinger, Ky. Ct. App., Oct. 26, 1882; 4 Ky. L. R., 317.

13. FRAUDULENT CONVEYANCES-FRAUDULENT INTENT ON PART OF GRANTEE NOT INDISPENSABLE.

14.

1. Under the present statute against fraudulent conveyances, it is not necessary to allege or prove that the grantee acted with the intention to aid his vendor in the fraud. He will not be protected if he had notice of the fraudulent intent of his grantor. 2. An attorney who accepts from his client a conveyance, pending a suit against him, made with the intention of preventing his adversary from collecting his debt, is affected with notice of the fraudulent intent of his client, regardless of any intention on his part to aid in the perpetration of the fraud. 3. It was sufficient to put the grantee upon inquiry, that the grantor had the land received in exchange deeded to his wife. Summers v. Taylor, Ky. Ct. App., Oct. 10, 1882; 4 Ky. L. J., 290.

FRAUDULENT CONVEYANCE MERGER OF EQUITY OF REDEMPTION FRAUDULENTLY CON

16. HUSBAND AND WIFE

EFFECT OF WIFE'S SIGNATURE TO NOTE-SUFFICIENT CONSIDERATION. On June 8th, 1879, one Stonebraker and the defendant, Jansen, executed a note to the plaintiff, Williams, due three months after date, on which this suit is brought. About the time of the maturity of the note, Williams agreed with Stonebreaker that if he would get his wife to sign the note he would extend the time of payment to August 1, 1879. Williams knew that Jansen, who signed the note as a joint maker, was surety only, and Jansen did not know at the time that Mrs. Stonebraker had signed the note, or that Williams had agreed to extend the time of payment, and he never consented thereto. Judgment was given for the defendant. Held, that as the wife's signature imposed upon her no liability whatever, being in contemplation of law a nullity, the responsibilities of the parties to the note were in no way increased or diminished, or otherwise changed by the addition of the name thereto. See Cushing v. Field, 10 Reporter, 334. If she had capacity to contract by reason of a separate estate, the burden was on the defendant to show it; and held, further, that the obtaining the wife's signature, though such signature be of no value to Williams, constitutes a sufficient consideration for the agreement to extend the time of payment. Lindell v. Rokes, 60 Mo. 250; Haigh v. Brooks, 10 Ad. & El. 309; Brooks v. Ball, 18 Johns. 337; Clark v. Sigourney, 17 Conn. 581. Williams v. Jansen, S. C. Mo.

17. HUSBAND AND WIFE EQUITY JURISDICTION WHERE WIFE IS UNWORTHY.

A deed from husband immediately to wife, conveying the whole of his real and personal property, will not be upheld in equity where the wife is shown to be unworthy of the interference of the court by reason of being an adultress; or where the provision for the wife, as here, is extravagant and exhaustive of the husband's estate. Warlick v. White, S. C. N. C., 1882; Am. L. Mag., 350.

18. LANDLORD AND TENANT-IMPLIED RENEWALTENANT HOLDING OVER.

Upon the question of an implied renewal of a tenancy all the terms of the former lease must be considered. Hence, if a landlord elect to treat one holding over as a tenant, he thereby affirms the form of tenancy under which the tenant previously held. Hollis v. Burns, S. C. Pa., October 2, 1882; 39 Leg. Int., 421.

19. MASTER AND SERVANT-NEGLIGENCE-INFANCY -MECHANICAL APPLIANCES.

The infancy of an employe does not of itself give him a cause of action against his employer for setting him at dangerous work, if it appears that he was of average intelligence, that his duties were explained to him when he entered upon the employment, and that he had in mind its dangers and the purpose to avoid them. There is no breach of duty in employing a servant subject to the ordinary risks of the emp'oyment if the servant himself is aware of the risks and consents to encounter them. An employer is not bound to make use of the newest mechanical appliances for the purpose of insuring the safety of his employees, especially if it does not appear that on the whole it would be advantageous to them. So, a railway company is not bound to block its frogs, particularly if it does appear that in so doing it would not entail greater dangers than it would avert. McGiniss v. Canada Southern Bridge Co., S. C. Mich., October 31, 1882; 13 N. W. R., 819.

20. NEGOTIABLE PAPER-UNCERTAINTY-BONA FIDE HOLDER.

As the instrument sued upon in this case as a negotiable promissory note contains a provision whereby the amount to be recovered may be rendered uncertain, it can not be sustained as a negotiable note; and as the matters set up in the answer would be a good defense in an action between the original parties, this defense will avail against a bona fide holder of such instrument by indorsement. Smith v. Marland, S. C. Iowa, October 21, 1882; 13 N. W. R., 852.

21. SET-OFF-CLAIM NOT DUE WHEN PROCEEDINGS WERE INSTITUTED.

It is necessary that a note sought to be used as a set-off should be due and owing to the defendant at the time that the original action was brought, and a note, therefore, which is purchased by the defendant upon the plaintiff after the original suit was commenced, can not ordinarily be pleaded as a set-off. Reynolds v. Thomas, Ș. C. Kan., Nov., 1882; Judge's Headnotes.

22. STATUTE OF FRAUDS-LIABILITY OF ANOTHER. Contractors to build a railroad agreed with mer

chants to pay orders and time checks issued by a subcontractor to his employees. Upon the faith of this agreement, and giving credit exclusively to the contractors, the merchants accepted and received such orders and time checks in exchange for goods. Held, that the promise of the con

tractors was not within the statute of frauds. West v. O'Hara, S. C. Wis., Oct. 31, 1882; 13 N. W. R., 894.

23. TAXES-RECOVERY OF TAXES PAID-VOLUNTARY AND INVOLUNTARY PAYMENT.

A payment of taxes is not compulsory, when it is not made under any duress of person or goods, or under any impending danger of seizure or sale of property; or where, before a warrant directing a levy can be issued, the party against whom the tax is charged is entitled to a day in court. Where there is a compulsion, actual, present, potential in inducing the payment by force of process available for instant seizure of person or property, and the demand is really illegal, there the party by giving notice of the illegality and his involuntary payment, can recover back the money so paid. Where the payment is voluntary, as in this case, a protest with notice of an intent to reclaim, is not suflicient to sustain a recovery. The voluntary character of the payment still remains, notwithstanding the notice, and is fatal to the action. Peebles v. Pittsburg, S. C. Pa., Oct. 25, 1882; 13 Pittsb. L. J.. 128.

24. WILL-PRECATORY TRUST.

A testator gave the whole of his property, real and personal, to his wife, "feeling confident that she will act justly to our children in dividing the same when no longer required by her." Held, an absolute gift to wife. Mussoorie Bank v. Raynor, Eng. P. C.; 31 W. R., 17.

LEGAL EXTRACTS.

THE USE OF AN OATH.

The North American Review is discussing a question which recent events in England and France have brought to attention the expediency of abolishing the oath in judicial proceedings and official qualification. The argument in favor of this change, which is pressed with much ability, ingenuity and force, may be summed up briefly in the propositions that an honorable or conscientious man will testify truly without an oath; a dishonest man will testify falsely if he wishes to in spite of it; and that as it is a device for introducing into legal proceedings a religious act which is discredited by some and despised by others, and often performed in a way to shock the sensibilities of those who credit and respect it, it must be regarded as both useless and obnoxious.

We doubt whether men of experience in judicial affairs will be able to accept the dilemma which is thus so ingeniously put. The question of the oath as a qualification for official responsibliity and power stands upon somewhat different principles, and may require somewhat different opportunities of observation to judge wisely of it. But in respect to the use of an oath for a witness, it would probably be found that the men who are most accustomed to deal with witnesses, to examine them, to cross-examine them, or to sit either on the bench or in the jury box, and scrutinize their testimony, would put the question somewhat differently. It is true, in a certain

sense, that a liar will testify falsely if he chooses to, in spite of an oath; and so it is true that a rogue will cheat, and a professional criminal will rob and murder, in spite of laws, and that an honest and upright man would do neither, though there were no laws. But, making all allowances for the degree of rough truth there may be in such generalizations, there is a large class of people with whom the existence and probable administration of the law is sufficient to turn the scale the one way or the other. We are inclined to think that the mass of mankind, in the present state of civilization and morality, occupy this middle ground. The degree of intelligence and morality which they possess, plus the sanctions of the law, are, together, sufficient, when either one alone might not be sufficient, to lead them to resist all ordinary temptations; and, on the other hand. with the criminal classes, in whom self-restraint is at the lowest degree, the existence and probable administration of the law is doubtless sufficient to lead them to refrain from many slight and trivial temptations, although defied at the impulse of strong and inviting opportunities. In other words, men who will go wrong if they choose, in spite of the law, do not choose to go wrong quite so often-perhaps not nearly so often as they would were it not for the law.

If our reformers could see into the minds of witnesses as they are brought to the stand, we apprehend that in a majority of cases-and such experience as we have had would lead us to believe it would be in the vast majority of cases-it would be seen that in the conscience of the witness there is usually something about the oath which makes it more difficult to testify falsely than if none were administered. It is not impossible that the majority of witnesses would be unable to explain the reason. It is very likely that explanations, if attempted, would be unsatisfactory to the philosophers, and might be regarded either as illogical or superstitious, or both. But when we wish in a tangled mass of contradiction and passion to restrict human testimony to the truth, it is necessary to be practical and to deal with the minds which are to afford the testimony in a manner approriate to the desired result.

The great obstacle which the practitioner finds in hotly litigated cases, and the principal hindrance to the fair administration of justice, at any rate in large cities, is in the degree to which men are willing to testify falsely and to take their risk of being troubled by a charge of perjury. We apprehend that in the present state of the general mind, if it were the usage simply to tell witnesses that they must tell the truth or they would be liable to prosecution and imprisonment in case it could be proved beyond a reasonable doubt that they told a falsehood, the proportion of interested witnesses who would regard it as a fair alternative—a situation in which they were entitled to mislead if they were willing to take the risk— would be uncomfortably large. We imagine that if any of the advocates of the abolition of the eath

were going to trial with a case of his own, in which passions and interests were strongly concerned, he would be very reluctant, while the oath was administered to him and his own witnesses, to allow his adversary and his adversary's witnesses to testify without an oath upon the simple admonition that if they were not careful they might be prosecuted. If he were required to submit to this deprivation of the oath upon his adversary, the bystanders would not be surprised to hear some extra-judicial oaths.

To show that the time has arrived for the abolition of the oath, it should appear either that teachers of religion and morality have made sufficient progress in the inculcation of truthfulness that individuals taken from the community at random will be found conscientiously as truthful without it as with it; or that skeptics and freethinkers shall have made sufficient progress in convincing the world that there is no moral or religions significance in an oath, that individuals taken at random from the community will find no more difficulty and no more cause for hesitation in a purpose of deception by means of a false oath, than in an ordinary conversation on business.

If the discussion of the question should lead the courts and officers upon whom the administration of oaths devolves, to perform this duty in a more fitting and decent manner, so long as oaths shall continue to be required, the discussion will not be without good effect meanwhile.-New York Daily Register.

RECENT LEGAL LITERATURE.

THOMPSON AND MERRIAMJON JURIES. A Treatise on the Organization, Custody and Conduct of Juries, Including Grand Juries. By Seymour D. Thompson and Edwin G. Merriam. St. Louis, Mo., 1882: William H. Stevenson, Law Publisher and Publisher of CENTRAL LAW JOURNAL.

The rights of habeas corpus, trial by jury, and other venerable muniments of personal liberty and property, are so familiar to us in these "piping days of peacc,' that we take as little cognizance of their value as we do of the air we breathe. Their importance, however, is not lessened by the comparatively infrequent occurrence of notable occasions for their use as safeguards of life, liberty and property. After the unexpected result of the "star-route" indictments, the value of trial by jury was, for a season, seriously impugned by the newspaper press, and some people, who ought to have known better, rashly inferred that the time-honored institution hadoutlived its usefulness. One swallow, however, does not make a summer, and a single failure of justice, if it be such, can not affect an institution which has withstood the storms of State for a thousand years.

Without entering upon the question whether

trial by jury be a less valuable privilege now than formerly, it is very safe to say that it is and will be, as much as at any former period, an important factor in the administration of justice, civil and criminal, and the laws by which it is regulated, are worthy of the most diligent study of the profession.

Of these laws an admirable compendium will be found in the work the title of which stands at the head of this article. Of the authors, one is well known and highly appreciated by the profession, and the other no less deserves to be. They have evidently bestowed upon this book a vast deal of careful and intelligent labor, and the result is seen in a work comprehending all the learning on the subject, admirably arranged and thorough and complete in all its details. Art. II. of Chapter XI., treating of the "prejudice, bias and opinions" of jurors as a cause of challenge, and as affecting their competency, is particularly well worked out, and furnishes in compact form the law upon a most critical subject on which the anvocate must necessarily act on the spur of the moment." Indeed, it may be said that the greatest value of the work is, that it is emphatically a book for practice, furnishing authority that can not elsewhere be found, except by consulting dozens or scores of volumes. When to this it is added that the questions which this book solves generally arise without warning and are decided by the court without delay, it is apparent that it supplies a want that must be seriously felt by every practitioner who appears before juries either in civil cases or criminal.

The criminal lawyer especially, will find this work in the highest degree useful. His practice is chiefly before juries, and questions involving the legality of their composition or action arise far more frequently in criminal than in civil cases. To him the whole law of juries, grand juries and petty juries, in a single volume, is surely invaluable.

The diligence of the learned authors has not failed to furnish the various modifications of the common law made by statute and judicial decision in the different States; and, in fact, nothing has been left undone which could render the book useful to the profession and creditable to its authors.

CONTRACTS OF MARRIED WOMEN. A Treatise on the Law of Contracts of Married Women. By John F. Kelly. Jersey City, 1882: F. D. Linn & Co.

The importance and difficulty of the subject discussed in this volume are familiar to every lawyer. The natural difficulty and intricacy of the topic, inherent in it, are considerable, even in the purity of the common law; but they have been immeasurably increased by the process of development which, for the last half century, it has been undergoing in the courts, as well as in the halls of legislation Many conflicting decisions and inartificia