debtor, even though both are principals to him, either to enforce the security himself and apply the avails of it to the debt, or to preserve it for the surety, so that the surety paying the debt can have the benefit of it by way of subrogation, and that if the creditor, in violation of his duty, surrenders the security without the consent of the surety, the latter will be discharged either wholly or pro tanto, according to the value of the security so rendered, and that according to modern decisions the surety is entitled to show the surrender by way of defense at law as well as in equity. Baker v. Briggs, 8 Pick. 122; Guild v. Butler, 127 Mass. 386; New Hampshire Savings Bank v. Colcord, 15 N. H. 119; Springer v. Toothaker, 43 Me. 381; Ferguson v. Turner, 7 Mo. 497; Kirkpatrick v. Howk, 80 Ill. 122; Rogers v. School Trustees, 46 id. 428; Neff's Appeal, 9 W. & Serg. 36; Everly v. Rice, 20 Penn. St. 297; Mayhew v. Crickett, 2 Swanst. 185. It is also well settled that the fact that one debtor is surety for the other is no part of the contract, but merely a collateral fact, which, if it does not appear on the face of the obligation, may be proved, together with the fact of notice thereof to the creditor, by extrinsic evidence. Guild v. Butler, 127 Mass. 386; Hubbard v. Gurney, 64 N. Y. 457. Otis v. Von Storch. Opinion by Durfee, C. J.

MARRIAGE-DIVORCE-ABILITY TO PROVIDE.-Two causes for divorce are assigned in the petition, namely, extreme cruelty and neglect or refusal to provide necessaries, the respondent being of sufficient ability. Extreme cruelty has not been proved. The only proof of neglect to provide is that, about a year and a half before the preferring of the petition, the respondent was arrested in Albany, N. Y., for burglary in the third degree, so called, convicted, and imprisoned in New York for two years. He was destitute of property of any sort, and of course could not while in prison have the fruit of his labor. Clearly therefore he did not have sufficient ability to provide necessaries for his wife, and we do not see how it can be said that the statutory cause has been proved. It is urged that the lack of ability ought not to avail the respondent because he lost the ability by his own fault. We do not think any estoppel can be applied in a divorce The question of divorce is not a matter which is merely personal to the parties. The State has an interest in it, and has clearly specified the causes; one or more of which must be shown to exist to the satisfaction of the court before the divorce can be granted. We cannot hold that the respondent had sufficient ability, when it is clear that he did not have it, merely because he lost it by his own fault. The fact that the fault was also a crime makes no difference, in a legal point of view, for it is not the crime which the statute makes a cause for divorce, but neglect or refusal to provide, being of sufficient ability. If the divorce were grantable in this case, notwithstanding the husband's lack of ability, we do not see why it would not be grautable for a like reason if the husband had simply disabled himself by breaking an arm or a leg by assuming an unnecessary risk or by falling sick from a reckless exposure to contagious disease. Hammond v. Hammond. Opinion by Durfee, C. J.

case.

WILL-POWER TO SEVERAL COUPLED WITH TRUST— ONE RENOUNCES -OTHER CONVEYS.-When a power coupled with a trust is given to two or more persons to be executed by them jointly, and one renounces, the other or others may execute the power as if originally given only to them, that the trust may not fail nor suffer delay. A. by will devised and bequeathed his estate to B. and C. in trust to sell, to invest the proceeds, and to use the income for his daughters during their lives with remainder over. In case of the death, refusal or inability of one of the trustees. the

testator desired the other to fill the vacancy. One of the trustees refused the trust; the other did not make an appointment in his stead, but alone made sales and gave deeds of the devised realty. Held, that the sales and deeds so made and given by the one trustee were valid. Houell v. Barnes, Cro. Car. 382; Lessee of Zebach v. Smith, 3 Binn. 69; Osgood v. Franklin, 2 Johns. Ch. 1; Franklin v. Osgood, 14 Johus, 527; Jackson dem. Hunt v. Ferris, 15 id. 346; Peter v. Beverly, 10 Pet. 532; Putnam Free School v. Fisher, 30 Me. 523. A review of some of these cases will set the doctrine in a clearer light. Houell v. Barnes was a question out of chancery propounded to the common-law judges. "The case was," says the court, one Francis Barnes, seised of land in fee, deviseth it to his wife for her life, and afterward orders the same to be sold by his executors hereunder named, and the money thereof coming to be divided amongst his nephews; and of the said will made William Clerk and Robert Chefly his executors. William Clerk dies; the wife is yet alive. Two questions were made. First. Whether the said William Clerk and Robert Chefly had an interest by this devise or but an authority. Secondly. Whether the surviving executor hath any authority to sell." The judges all resolved "that they have not any interest, but only an authority, and that the surviving executor, notwithstanding the death of his companion, may sell." And so the judges certified their opinions. The questions were answered without reasons, but if the judges had given their reasons they probably would have said that the power survived, not because it was coupled with a trust, but because it was official, not merely personal, and therefore followed the office to the surviving executor, being essential to the performance of a duty imposed upon the executors as such for the purpose of carrying the will into effect. The meaning however would have been essentially the same as if they had used the language of the chancery courts, and said that the power survived because it was a power coupled with a trust. The law is quoted in Osgood v. Franklin, 2 Johns. Ch. 1, in support of the doctrine that a power given to two or more goes to the survivor when coupled with a trust. See also Lessee of Zebach v. Smith, which is very similar to Houell v. Barnes. In Osgood v. Franklin, 2 Johns. Ch. 1, the power was given by a will which appointed the wife of the testator and his three brothers executors. The power was given in these words, to-wit: "I give to my executors that may act, and to the major part of them, their heirs or executors, full power to sell any or all my real estate not already devised." The will gave the residuary estate to eight persons, four of whom were the four persons appointed executors, one-eighth to each. This devise was coupled with the following directions, to-wit: "I order that the money or effects be distributed and divided from time to time, as it can be raised from my debts and estate by my executors, hereinafter named." One of the brothers declined to act; the other two accepted the appointment, and acted until they died. After their death the widow qualified. The principal question in the case was whether she had power under the will to sell real estate. Chancellor Kent decided that the executors were charged with a trust, relative to the estate, depending on the power to sell, and that the power therefore survived. "The intention of the testator," he remarked, " is much regarded in the construction of these powers, and they are construed with greater or less latitude in reference to that intent." The case was carried to the Court of Errors, and there affirmed, the court holding that where the provisions of a will evince a design in the testator, that at all events, the lands are to be sold, in order to satisfy the whole intent of the will, then the power survives. In Peter v. Beverly, 10 Pet. 532, David Peter left a will in

which he appointed his wife, his brother, George Peter, and his wife's brother, Leonard H. Johns, executors, and provided that portions of his real estate should be sold for the payment of his debts. All the executors qualified. The widow and the brother entered upon the execution of the will, and subequently died, leaving debts still unpaid. The question was whether under the will George Peter, as surviving executor, could sell the real estate for the payment of the debts. The court decided that he could, the power being coupled with a trust. The court say: "When power is given to executors to be executed in their official capacity, and there are no words in the will warranting the conclusion that the testator intended, for safety or for some other object, a joint execution of the power, as the office survives the power ought also to be construed as surviving; and courts of equity will lend their aid to uphold the power for the purpose of carrying into execution the intention of the testator, and preventing the consequences that might result from an extinction of the power; and where there is a trust charged upon the executors in the direction given them in the disposition of the proceeds, it is the settled doctrine of courts of chancery that the trust does not become extinct by the death of one of the trustees." In the cases above cited the power was given to the donees as executors. In the case at bar the power was given to Arnold and Allen as trustees. The difference is not material; for in equity executors are regarded as trustees in so far as they are invested with dominion over the testate estate for the benefit of others, and independently of any statute, the reasons for the continuance or survival of the power are as strong in favor of trustees as of executors. Bailey, J., Petitioner. Opinion by Durfee, C. J.

[Decided June 26, 1885.]

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

RELEASE-JOINT WRONG-DOERS-SETTLEMENT WITH ONE.-Plaintiff and defendant were employed by C. Plaintiff was injured by the negligence of defendant moving a derrick. After the accident C. paid to plaintiff's attorney, $150, and took from plaintiff a general release from all causes of action for damages. Held, that the release was a bar to the action against the defendant. The rule that a release of a cause of action to one of several persons liable operates as a release to all, applies to a release given to one, against whom a claim is made, although he may not be in fact liable. The validity and effect of a release of a cause of action does not depend upon the validity of the cause of action. Brown v. City of Cambridge, 3 Allen, 474; Goss v. Ellison, 136 Mass. 503. If the cause of action against the defendant in this suit was released to C. this action cannot be maintained. As the release is general of all causes of action, the identity of the cause of action against the defendant with a cause of action against C. must be shown. Stone v. Dickinson, 5 Allen, 29. If when the release by C. was given, the plaintiff was asserting against him a liability for the same act for which it now asserts the liability of the defendant, the two causes of action are the same, so that a release of one will discharge the other. It was upon this point only that the effect of the release was submitted to the jury and the instructions given as applied to the evidence, permitted them to find a payment and release a bar only, if the payment was made by C. in settlement of a claim made, and to avoid a suit threatened for the act for which recovery is sought against the defendant. The instructions were correct, and the rulings asked for by the plaintiff were properly refused. The evidence of R. and C.,

which was objected to, was competent upon the point covered by the instructions reported. Leddy v. Barney. Opinion by W. Allen, J. [Decided June 24, 1885.]

FINANCIAL LAW.

NEGOTIABLE INSTRUMENT-SIGNING NOTE AFTER MATURITY-STATUTE OF frauds.-After a note had matured, but was still held by the payee, two sons of the maker, for the purpose of inducing the payee not to pass the note into the hands of a third person, and to give further time for payment, placed their names under that of their father, already upon the note. Held, (1) that there was a good consideration to support their contract, which was to pay the amount of the note upon demand; (2) that their contract was not within the operation of the statute of frauds. Had their names been signed to their paper before maturity, it could with no reason be pretended that they did not enter into a clearly defined written contract to pay money at a certain time. But it is said that from the fact of its appearing that at the time of the signature the note had already matured, it appears that their promise, so far as it was evidenced by the writing itself, was to pay at an impossible time. It is no objection to the validity of a note that it has no time of payment mentioned. It is payable on demand. Thompson v. Ketcham, 8 Johns. 189; Whitlock v. Underwood, 2 B. & C. 157; Piner v. Clary, 17 B. Mon. 663. The negotiation of a note after maturity is equivalent to the issuance of a note payable on demand. This is the extent of an indorser's liability who places his name upon paper after maturity. Berry v. Robinson, 9 Johns. 121; Bishop v. Dexter, 2 Conn. 419; Patterson v. Todd, 18 Penn. St. 426; Chitty Bills, § 216. And from all analogous instances of the signing of commercial paper after maturity, the contract of these parties must be esteemed as the execution of a note payable upon demand. But it may be said that this effect of the signature is the result of the application of the usages peculiar to the law-merchant, and is not the written expression of the parties, and so does not amount to a writing within the purview of the statute of frauds. If however it be admitted that this coustruction of the contract into which these parties entered is the result of the application of the principles of the law-merchant, and is not merely the construction which is always given to any agreement to do an act where none or a past date is mentioned, yet this admission does not aid the plaintiffs in error. For it cannot be doubted that to the class of collateral agreements in which, by the law-merchant, a signature, from its position and surrounding circumstances, implies a completed contract, the statute of frauds does not apply. Thus Chitty, speaking of bills, remarks that this security is in some respects preferable to many others of a more formal nature. For, says he, each of the parties to a bill, by merely writing his name upou it as drawer, acceptor or indorser, thereby guarantees the due payment of it at maturity, and the consideration in respect of which he became a party to it can rarely be inquired into; whereas in the case of an ordinary guaranty the statute against frauds requires the consideration to be expressed, and other matters of form, which frequently render an intended guaranty wholly inoperative. So Mr. Throop, in speaking upon this subject, observes that it is well settled that in the absence of a statute requiring an acceptance of a bill of exchange to be in writing, a verbal acceptance will bind, the cases so holding ignoring altogether the statute of frauds. Many other still more unequivocal instances of liabilities created by the mercantile law, which are daily enforced by

the courts in direct conflict with the provisions of the statute of frauds, may be suggested. For instance, that of an accommodation indorser, particularly of an unaccepted bill of exchange. Throop Validity of Verbal agreements, § 86. The following authorities are grounded obviously on the non-applicability of the statute to contracts which arise by the usages of the law-merchant: 2 Dan. Neg. Inst. 777; Leonard v. Mason, 1 Wend. 522; Oakley v. Boorman, 21 id. 588; Spaulding v. Andrews, 48 Penn. St. 411; and other cases cited by Mr. Throop at section 86 of his work. New Jersey Ct. of Errors and Appeals. Frech v. Yauger. Opinion by Reed, J. (47 N. J. L. 157.)

free hospitality of the profession as welcomed our own lord chief justice on the further shores of the Atlantic. The time of the year was, admittedly, unpropitious; the hard-working judges and counsel being scattered to the four winds of Heaven. Chief Justice and Mrs. Waite, we understand, were the guests of Lord Bramwell, Lord Fitzgerald, and other distinguished persons in turn. This is so far satisfactory, and no doubt the difficulties were fully explained. Yet it does seem a pity that no attempt was made to enable the bar to offer a true English welcome to the great American judge. There was certainly no absence of right good will. There was some soreness, we know, caused in American legal circles because the Times spoke of the learned judge as a gentleman introduced as the chief justice of the United States, without seeming to know his name.-Pump Court.

One of the society journals has complained that the American chief justice was somewhat scurvily treated by the bench and profession when in this country. Undoubtedly American lawyers are far in advance of their English brethren in the matter of civilities to individuals. When members of their own body die, a funeral oration is almost inevitable, and in the spirit of a young republic, they are always glad to give cordial welcome to eminent strangers. It was hardly to be expected that Chief Justice Waite would meet with a reception in this country similar to that which was accorded Lord Coleridge in America. His name was probably unknown to most, and his presence in England was known only to a few. Lord Bramwell and other emineut men showed him every civility, and perhaps at another period of the year there would have been a combined recognition of his arrival, and a public tribute paid to the high office which he holds, and which has been filled by so many distinguished men.Law Times.

64

'Houghton, with all his high gifts, had, like most really noble men, a good deal of the woman in his nature, not only of the gentle, the merciful woman, but also of the woman excelling man by her ready initiative, by her swift sagacity transcendent of the reason

of General Term reversed; that of surrogate affirmed, with costs-In re Accounting of David Hawley, etc.

clever resort to a charming little bit of stage artifice. My laundress had come to me one day in floods of tears because her little boy of eleven years old, but looking, she said, much younger (being small of stature), had wandered off with another little boy of about the same age to a common near London, where they found an old mare grazing. The urchins put a

handkerchief in the mouth of the mare to serve for a bridle, got both of them on her back, and triumphantly rode her off, but were committed to Newgate for horse-stealing! My laundress (not wanting in

If the lads in charge of the Columbia Jurist do not stop publishing such things as the following, which we find in its columns, Prof. Dwight will suspend them for undue partiality to us: "The ALBANY LAW JOURNAL, otherwise known as the 'Ruler of the Queen's Navee,' has opened its annual winter campaign in favor of the Field Code. From this time on, the readers will have to swallow the said Code in all possible forms. We would suggest to the JOURNAL, in a meek and humble way, of course, that when it runs short of copy on this subject, it might print the whole Code bodily. As a condensed digest of leading principles of the law, we have found it of great service."

There is a wide-spread feeling of deep regret that the distinguished chief justice of the Supreme Court of the United States was not received with the same

fended by counsel, but I thought it cruel that the fate of the poor little boy should be resting on the chances of a solemn trial, and I mentioned the matter to Milnes [Lord Houghton]. He instantly gave the right counsel. Tell your laundress to take care that at the trial both the little boys-both mind-shall appear in nice clean pinafores.' The effect, as my laundress described it to me, was like magic. The two little boys in their nice 'pinafores' appeared in the dock and smilingly gazed round the court. What is the meaning of this?' said the judge, who had read the depositions and now saw the 'pinafores.' 'A case of horsestealing, my lord.' 'Stuff and nonsense!' said the judge with indignation. 'Horse-stealing, indeed! The boys stole a ride.' Then the 'pinafores' so sagaciously sugggested by Milnes had almost an ovation in court, and all who had to do with the prosecution were made to suffer by the judge's indignant comment."-Fortnightly Review.

The Albany Law Journal.

ALBANY, OCTOBER 31, 1885.

CURRENT TOPICS.

ness to set the public just exactly right they have no business to report on the judiciary ticket at all. An indorsement all around is a simple absurdity.

In the country districts several renominations have been made for the judicial office, and in every instance, we believe, worthily bestowed. In sev

out the State. The renomination of Judges Barrett, Sedgwick, McAdam and Hawes is creditable, for their judicial duties have been admirably performed, and their present familiarity with nisi prius matters would not be equalled by the elevation of any practicing lawyers to the bench. Experience counts with judges as with other functionaries. The new nominees are, for the Common Pleas, Edward Patterson, Henry W. Bookstaver and Theron G. Strong. Of these three candidates for so important a position, Mr. Strong seems most likely to make a useful judge. He is young, well educated, and his exertions in the Stoke's will case showed powers of a high order, apt to mature by experience. Of Mr. Patterson's professional efforts

the court records exhibit little. He has however

lately developed considerable power as a politician, and is striving hard to be a judge. It is thought, if his complacency does not put an end to his usefulness, that he will at least be an incorruptible judicial functionary. Of all the candidates Mr. Bookstaver must possess the largest practical experience, by reason of a long and varied practice. Notwithstanding the respectable character of the judiciary ticket, we feel it our positive duty to say that the manner of nominating the judges in the city of New York does not seem to attract the best minds of the profession, and that instead of getting luminous intellects, capable of solving the great problems of society, in the light of experience, knowledge and power, they get oftentimes very shallow folk indeed. We often wonder whether the candidates themselves do not laugh in their sleeves at the entire method which secures to them their candidacy over better men.

The New York City Bar Association have made their report on the fitness of the city judiciary ticket, indorsing everybody all around, and including Mr. Bookstaver on an amendment of General Hubbard's. What public significance or utility such absurd conduct as this can have we cannot see. The public look to the City Bar Association as an association of lawyers competent to tell them the name of the particular candidates best suited by training, character and accomplishments, to the judicial office. There must be some one candidate better fitted than the others for a judicial position. Why have not the Bar Association the courage boldly to report who the particular man or men are, or else to be silent? Are these gentlemen such traffickers for business that they cannot rise to a high sense of public duty? If it is not their busiVOL. 32 No. 18.

tribute to good judicial service. These nominations ought always to be independent of party considerations. Where a judge has earned the public approval he ought to be continued in office, no matter what his politics. Few of our judges who have been one term on the bench have any politics left. The principles of civil service reform ought to be applied to the judicial office, much more than to any other.

We shall not lack our humorous case this week. In Heddenrich v. State, 101 Ind. 564, the court found it necessary to decide that a statute prohibiting the keeping open of liquor saloons "between the hours of eleven o'clock, P. M., and five o'clock, A. M.," means eleven o'clock at night and five "Time is not reckoned o'clock the next morning. backward," say the court, and "courts judicially know the usual method of reckoning time." The same court, in Bessette v. State, 101 Ind. 85, granted a new trial because counsel in his fervor indulged in the following remarks on the prisoner's personal appearance: "Luke Bessette has a bad looking face; I ask you to just look at his face; you have a right to look at his face, and I have the right to ask you to look at his face, and as prosecuting attorney I have a right to comment upon it; if his face does not show him to be a bad man, then I am not a good And because judge of the human countenance." he distinguished a juror as follows: "The defense has already succeeded, perhaps, in making a young man on the jury believe that this is a blackmailing scheme. I think I know who he is, and I think he has become greatly impressed with that theory." The court thought the prisoner ought not to be convicted because nature had not been generous to him, and on the other point it observed: "The personal allusion made to the probable state of mind of one of the jurors was yet more reprehensible. To be thus singled out from his fellow jurors, and put under surveillance, was well calculated to impair the independence of mind and judgment. which it was the right and duty of the juror to maintain, until convinced by the evidence, and the fair and legitimate argument of counsel." In Carter v. Carter, 101 Ind. 450, the defendant not being present in court, counsel said: "Why isn't Jim Carter here to-day? He is not here to-day. don't want to be here, and it is well he is not here after making such an exhibition of himself." He subsequently "withdrew the remark," saying it was a "slip of the tongue," and the court de ded to grant a new trial, observing that it was "to be characterized rather as a question of taste and pro

He