fused such an injunction. In Burditt v. Swenson, supra, the livery stable having been proved to be a nuisance by the verdict of a jury, the court awarded a perpetual injunction.

No case has been referred to in which the erection of a livery stable has been enjoined where the fact that it would be a nuisance was denied, and where it had not been ascertained to be such by an appropriate judicial inquiry, before the injunction was awarded. And so far as my researches have gone, Lord Brougham is entirely correct in his statement in the Earl of Ripon's case, supra, "that no instance can be produced of the interposition, by injunction, in the case of an eventual or contingent nuisance." Cleveland v. Gas Co., 20 N. J. Eq. 201; Duncan v. Hayes, 22 Ib. 25; Rhodes v. Dunbar, 57 Pa. St. 274; Wood on Nuisances, sec. 789. The difficulty in thus interfering is greatly increased if not insurmountable, when it is the use to which the structure is to be put, and not the intrinsic nature of the structure itself, which forms the basis of anticipated grievance. Duncan v. Hayes, 22 N. J. Eq. (7 C. E. Green) 25. That the parties may not be misled, it may be as well to add that we deny the injunction on the ground that the answer having denied the fact that the building, when erected and used as proposed, will be a nuisance to the property in the neighborhood, and the case being one in which the question of nuisance or no nuisance depends upon circumstances hereafter to be ascertained, it is, therefore, not one in which it is proper to issue the writ asked at this stage of the controversy. The filing of the bill may not, however, prove to be eventually useless, since it is generally good policy," says Mr. Wood (Law of Nuisances, sec. 790), "where there are strong reasons to believe that the thing will be a nuisance, to institute proceedings to stay its progress, particularly if its erection involves large expenditures, as in such cases the party cannot be charged with laches, nor can acquiescence in any measure be imputed to him, and the diligence used by instituting the proceedings, operating as a notice and protest against the use of the property in the manner contemplated, strengthens the plaintiff's equities when he asks for an injunction after the use of the property actually proves injurious." The defendants now proceed at their peril, and if it shall hereafter be found by a jury, or otherwise judicially ascertained that the stable in this place, as used by them, does interfere with the comfortable enjoyment of the neighboring property, they cannot complain if they are then perpetually enjoined from the further use of it for the purpose for which it was designed. INJUNCTION DENIED.

A WELL-ATTENDED meeting of the bar of the United States Supreme Court was held last week in Washington, to take action in relation to the death of Caleb Cushing, Secretary Evarts presiding. Several speeches were made, expressive of respect and esteem for Mr. Cushing, and a profound sorrow at his death. Resolutions of a similar tenor were adopted.

CONTRACT BETWEEN TWO PARTIES TO PAY DEBT DUE ANOTHER-ACTION.

SECOND NATIONAL BANK v. GRAND LODGE F. & A. MASONS.

Supreme Court of the United States, October Term, 1878.

1. WHERE A DEBT ALREADY EXISTS from one person to another, a promise by a third person to pay such debt, being primarily for the benefit of the original debtor, and to relieve him from liability to pay it (there being no novation), he has a right of action against the promisor for his own indemnity, and the original creditor can not sue.

2. WHERE AN ASSOCIATION AGREED with another association, in consideration of the performance of certain acts by the latter, to pay certain bonds issued by the latter: Held, that the bondholders had no right of action to enforce such agreement against the first named association, especially when they could not perform the stipulated acts.

In error to the United States Circuit Court for the Eastern District of Missouri.

Mr. Justice STRONG delivered the opinion of the court:

It is unnecessary to consider the several assignments of error in detail, for there is an insurmountable difficulty in the way of the plaintiff's recovery. The resolution of the Grand Lodge was but a proposition made to the Masonic Hall Association, and when accepted, the resolution and acceptance constituted at most only an executory contract "inter partes." It was a contract made for the benefit of the association and of the Grand Lodge-made that the latter might acquire the ownership of stock of the former, and that the former might obtain relief from its liabilities. The holders of the bonds were no parties to it, and there was no privity between them and the lodge. They may have had an indirect interest in the performance of the undertakings of the parties, as they would have in an agreement by which the lodge should undertake to lend money to the Hall Association, or contract to buy its stock to enable it to pay its debts, but that is a very different thing from the privity necessary to enable them to enforce the contract by suits in their own names. We do not propose to enter at large upon a consideration of the inquiry how far privity of contract between a plaintiff and defendant is necessary to the maintenance of an action of assumpsit, The subject has been much debated, and the decisions are not all reconcilable. No doubt the general rule is that such a privity must exist. But there are confessedly many exceptions to it. One of them, and by far the most frequent one, is the case where under a contract between two persons assets have come to the promisor's hands or under his control which in equity belong to a third person. In such a case it is held that the third person may sue in his own name. But there the suit is founded rather on the implied undertaking the law raises from the possession of the assets than on the express promise.

Another exception is where the plaintiff is the beneficiary solely interested in the promise, as where one person contracts with another to pay money or deliver some valuable thing to a third. But where a debt already exists from one person to another, a promise by a third person to pay such debt being primarily for the benefit of the original debtor, and to relieve him from liability to pay it (there being no novation), he has a right of action against the promisor for his own indemity, and if the original creditor can also sue, the promisor would be liable to two separate actions, and, therefore, the rule is that the original creditor can not sue. His case is not an exception from the general rule that privity of contract is required. There are some other exceptions recognized, but they are unimportant now. The plaintiff's case is within none of them. Nor is he sole beneficiary of the contract between the Hall Association and the Grand Lodge. The contract was made, as we have said, for the benefit of the association, and if enforceable at all, is enforceable by it. That the several bondholders of the association are not in a situation to sue upon it, is apparent on its face. Even as between the association and the Grand Lodge, the latter was not bound to pay anything, except so far as stock of the former was delivered or tendered to it. The promise to pay and the promise to deliver the stock were not independent of each other. They were concurrent and dependent. Of this there can be no doubt. The resolution of the lodge was to assume the payment of the two hundred thousand dollar bonds issued by the Hall Association, provided, that stock is issued by the Grand Lodge to said association to the amount of said assumption 66 as said bonds are paid." Certainly the obligation of the lodge was made contingent upon the issue of the stock, and the consideration for payment of the debt to the bondholders was the receipt of the stock. But the bondholders can neither deliver it nor tender it. Nor can they compel the Hall Association to deliver it. If they can sue upon the contract, and enforce payment by the Grand Lodge of the bonds, the contract is wholly changed, and the lodge is compelled to pay whether it gets the stock or not. To this it can not be presumed the lodge would ever have agreed. It is manifest, therefore, the bondholders of the Hall Association are not in such privity with the lodge, and have no such interest in the contract, as to warrant their bringing suit in their own names.

*

*

Hence the present action can not be sustained, and the circuit court correctly directed a verdict for the defendant. JUDGMENT AFFIRMED.

NOTE. This case is decisive upon a point about which courts have been strangely in conflict. "Where a debt already exists from one person to another, a promise by a third person to pay such debt, being primarily for the benefit of the original debtor, and to relieve him from liability to pay it (there being no novation), he has a right of action against the promisor for his own indemnity, and, if the original creditor can also sue, the promiser would be liable to two actions, and, therefore, the rule is that the original creditor can not sue." If, with this clear expression, we should publish the statute of frauds against any effort to hold

one for a promise not in writing, to pay the debt of another, the law against the effort, which is made in many courts-and in some successfully-by a mort gagee to hold a subsequent grantee upon a promise to pay the mortgage debt-the promise being in the deed he has taken. The courts which have so held, have held so without sound reasoning, and against the better judgment of the profession. It may unfortunately be true that this error is fixed in the law of some of the States; repeated decisions having so held, but it is none the less an error. It is an error which time

will never cure or make good law. It is based on no principle; warranted by no reasoning, and needful in no emergency. The sooner such an error is eradicated the better.

The Supreme Court of the United States has, in this opinion-in the sentences quoted-placed itself right. The Superior Court of Indianapolis, in Mansur v. Miller, noted in the CENTRAL LAW JOURNAL, vol. 7, p. 422, and in the later case of Mansur v. Bartholomew (see below), have gone as far as the erroneous rulings of the Supreme Court of Indiana will allow to give relief from the effect of the decisions attempting to hold the party assuming as liable to the mortgagee. In the first case it was held that the mortgagee must allege an acceptance of the promise before suit. In the second case it is held that the action must be upon the assumption in the deed, and not upon the note, and, therefore, the grantee assuming can plead any defense he or his grantor might have to the note and mortgage. The correctness of these rulings will not be questioned, and the fact that such a ruling is necessary to protect any person is the strongest proof that the pres ent ruling of the Supreme Court of the United States is right. It can but be hoped that whenever possible the ruling in all the States on the question may be made to harmonize with this, the opinion of the highest court of the country. J. A. F.

MANSUR v. BARTHOLOMEW.

Superior Court of Marion County, Indiana, General Term, December, 1878.

ASSUMPTION OF MORTGAGE DEBT. In a foreclosure suit, in which plaintiff seeks to hold a vendee upon a clause in the deed in which vendee has assumed to pay a mortgage debt, the action is upon the contract of assumption and not upon the note. Any defense may be given by defendant, though the note be negotiable, and plaintiff an innocent holder.

ELLIOTT, J.:

Green and Bartholomew executed a note negotiable by the law merchant to J. C. Downey, and at the same time executed to Downey a mortgage to secure its payment. The real estate was sold by Green & Bartholomew to Thomas Davis, and in the conveyance to Davis was written a clause assuming and agreeing to pay the note with interest accrued and to accrue thereon. Mansur, the plaintiff, became the owner in good faith, for a valuable consideration, and before the maturity of the note, which Davis had assumed and agreed to pay.

Davis, in his answer, alleges that the note was given to secure to Downey a part of the purchase-money of the real estate conveyed to him; that Downey had conveyed to Green & Bartholomew with general covenants of warranty, and that Green & Bartholomew convey. ed it to Davis by warranty deed, except as to the mortgage executed by Green and Bartholomew to Downey. It is further alleged, in defendant's answer, that there was a breach of the covenant of warranty: in that, at the time of the conveyance to Green & Bartholomew, there was an outstanding mortgage;

that on this mortgage a decree of foreclosure was obtained, the real estate sold, and that Davis, by virtue of such sale, has been evicted from the said real estate. To this answer a demurrer was addressed and overruled and exception taken. The question for our consideration arises upon the ruling.

Counsel for plaintiffs argue that the party who assumes to pay a mortgage executed by his vendor, takes the place of the vendor, and is not entitled to make any other defense than such as the vendor might have made. Starting from this proposition (for, in a condensed form, this is the substance of appellant's first position), the counsel argue that, as Green & Barolomew could not have defended against the note in the hands of a bona fide holder, neither can Davis, their grantee. We are referred to several cases, among these, Josselyn v. Edwards, 57 Ind. 212. We do not understand this case as deciding one who assumes to pay a pre-existing mortgage, to be liable on the notes executed by the mortgagor. What we do understand it to decide is that, if one assumes to pay, and does not pay, he is liable on his contract of assumption. We are also cited to Calvo v. Davies, 8 Hun, 222, where it is held that, if time of payment be extended to the party who assumes the original debtor is discharged. Whether this be good law or bad, it does not apply to the case under consideration; for here the question is, whether the party is or is not liable on the original note. It may well be, as held in Calvo v. Davies, that the original debtor stands as surety for the one who assumes; for the relation would grow out of the contract of assumption, and would not necessarily require that the party who assumes should be held in the same manner, and to the same extent, as if he had signed or endorsed the original note.

The fallacy which pervades this argument is assuming that the contract of assumption is the same thing as executing or endorsing a negotiable promissory note. It is true that it is decided, and rightly, in Josselyn v. Edwards, that the party who assumes is bound to pay the 1.ote according to its tenor, and, therefore, bound to pay the rate of interest therein specified, and attorneys' fees, and also to pay without relief from valuation or appraisement laws. He is bound to do this because he contracted to do it; bound on his contract, but not as the maker or endorser of a negotiable note.

We are also referred to Carpenter v. Longman, 16 Wall., where it was held that a mortgage securing a negotiable promissory note was protected to the same extent as the note itself in the hands of a bona fide holder. This doctrine was much questioned, and a recent decision of our own Supreme Court seems to indicate a different ruling; but as we have decided in several cases, we think Carpenter v. Longman lays down a correct rule. The law, as declared in Carpenter v. Longman, does not, however, apply to the facts of this case; there is, indeed, not the slightest analogy between the two. Here Davis undertakes, with Green & Bartholomew, to pay a designated note. Mansur secures his rights through Downey, and Downey his through and by virtue of the contract of Davis with Green & Bartholomew, and not because Davis signed or indorsed a negotiable note, or executed a mortgage to secure one. True, the note which Davis agreed with Green & Bartholomew to pay was negotiable, but the contract which binds him is the contract written in the deed accepted by him, and Mansur can only recover on that contract. Downey's recovery as against Davis, supposing him to have been entitled to a recovery, could not have been upon the note, but upon the contract of assumption. The rights all grew out of that contract; it affords the measure, and the only measure, of right and its correlative liability. There is still another reason why Carpenter v. Longman can not be deemed applicable to such a case as the present. Davis

is not seeking to defeat a foreclosure of the mortgage, he is simply endeavoring to prevent a personal liability from being fastened upon him. There is no attempt to question the validity of the mortgage, or to impair the rights which it creates. There is no effort to prevent Mansur from getting the full benefit of the mortgage by which his note was secured. Josselyn v. Edwards does not decide what the character of the contract is, but does decide that where there is liability, the measure and, form of recovery is that fixed and fashioned by the note which the person contracting to assume agreed to pay. In that case the court said: "The Josselyns having failed to pay the note, and Edwards having paid it, the latter became subrogated to all the rights of Thompson in the debt of which the note furnished the evidence." The conclusion to be deduced from this statement, as well as from settled principle, is that the note is the evidence of the debt agreed to be paid, and the contract of assumption the evidence of the agreement to pay.

We are to look to the clause in the deed as the evidence of the contract; to the note assumed for the measure of damages. The breach in failing to pay is not a breach of the contract evidenced by the note, but a breach of the contract contained in the deed; and the amount of recovery is that fixed by the note, because that is the loss sustained by the breach of the contract of assumption.

We think it would be a wide stretch of judicial power to declare that one who agreed to pay a negotiable note became liable in the same manner as if he were a party to the note, as maker or indorser. He can only be made so by inventing a fiction which shall declare that accepting a deed is the same thing as indorsing or signing a note negotiable by the law merchant. As a fact, the acceptor of the deed does not sign or indorse the note; the utmost that can be said is that he promised, in a distinct and different contract, to pay the note. Nor is it just to hold one who accepts a deed containing a clause of assumption to the same liability as the maker or indorser of a commercial note, for his contract is not in that form; his contract has not that legal effect, nor is there anything in it, either in form or substance, inviting any one to buy the right to enforce it, free from all just defenses. That the rights of the beneficiary in a contract made with another for his benefit are upon the contract written in the deed, and not upon the promissory note, is, we think, established by Bischof v. Durham, 47 Ind., wherein it was held that the contract might be rescinded by the immediate parties at any time before the acceptance by the beneficiary. If the liability in such a case is on the note, then, of course, there could be no rescision by the immediate parties, for the owner of the note and no one else could rightfully agree to a rescission. In Day v. Patterson, 18 Ind. 114, which was an action on a contract, such as is contained in the deed in this case, it was said: "But it is settled in Indiana that a party may sue on a promise made for the benefit of a third person. Was not Patterson's promise to pay off the incumbrance on Day's land such a promise? It would seem so. Day's grantors were bound to pay the incumbrance on the land sold to him. In a sale to Patterson they, in effect, leave with him the amount of money necessary to discharge that incumbrance as a consideration of his agreement to pay it off for the benefit of Day. If that contract has not been impaired by anything subsequently done or discovered, Day may have the benefit of it." From this statement but one inference can be drawn, and that is that the action is founded on the contract, and not on the debt assumed. At common law a promise of one to another, for the benefit of a third, could not be enforced by the latter. For many years this was the law of Indiana. Sulman v. Brown, 6 Blackf. 347; Conklin v. Smith, 7 Ind. 107.

In Bird v. Lanius, 7 Ind. 615, the common law rule was departed from and the equity rule adopted, and from that time has been closely followed. At common law a promissory note could be sued on, and, if an action, such as the present, had been upon the note, and not upon the contract of assumption, our court would never have, as it has always done, since Bird v. Lanius, proceeded upon the rule borrowed from equity. The theory upon which the beneficiary is allowed to maintain the action is thus stated in Miller v. Billingsly, 41 Ind. 24: The person making the promise, or securing the money or article, is treated as a trustee for the person for whose benefit the promise was made, or for whose use the money or article was received. Very much the same ground is taken in Matthews v. Rittenous, 31 Ind. 31, where it is said, the beneficiary "is entitled to the benefit of such a promise, and may sue in equity for the breach thereof."

Without multiplying citations, we think these conclusions may be affirmed: 1. That one who contracts with another to pay a debt to a third, is liable on that contract, and not on the original contract evidencing the debt assumed. 2. That where the debt assumed is a negotiable promissory note, it affords the measure of damages recoverable in an action for a breach of the contract for assumption. 3. That the party assuming the payment of the original note is not liable as a maker or indorser of such a note, and is, therefore, not precluded from defending against a bona fide holder of the original note, who sues upon the contract of assumption.

As Davis was sued on his contract of assumption, he was entitled to make the same defense against Mansur that he might have made against Downey, Mansur's assignor, and as the defense set up in the answer was valid against Downey, it must be held good as against Mansur. There was, therefore, no error in overruling the plaintiff's demurrer to the answer, and the judgment must be affirmed.

NOTES OF RECENT DECISIONS.

VENDOR AND VENDEE-WRONG DESCRIPTION OF LOCATION OF PROPERTY IN A DEED-WHEN VENDOR LIABLE FOR INJURY SUSTAINED. Holmes v. McGee. Supreme Court of Pennsylvania, 5 W. N. 265. Opinion PER CURIAM. Where land was sold and, through an uncertainty as to the county lines, a deed was delivered describing the property in one county, whereas it really lay in another adjoining, though it was otherwise correctly described, and there was no fraud on the part or the vendor: Held, that the vendee could not recover from the vendor damages alleged to have been suffered by reason of such misdescription.

DEVISE-CONSTRUCTION OF "ENJOY."

Crosky

v. Dodds. Supreme Court of Pennsylvania, 6 W. N. 246. A devise of land to A and B "to enjoy, and to hold the same as tenants in common," in the absence of any words showing a contrary intent, vests a fee simple in the devisees. MURCUR, J.-The devisees could not fully "enjoy" the lands without taking the rents, issues and profits. It is manifest that the testator did not give them any less interest than the rents, issues and profits. If he intended to devise those, it is a devise of the land itself, as fully as he held the same, unless it appears in the will that he intended to devise a less estate.

MARRIED WOMAN ASSUMING MORTGAGE ON REAL ESTATE CONVEYED TO HER, LIABLE THEREON. Cushman v. Henry. Court of Appeals of New York, 19 Alb. L. J. 29. Opinion by ANDREWS, J, A married

woman purchased real estate assuming in the deed to her the payment of a mortgage executed by the grantor. Held, that she was liable on such contract by assumption, and her grantee assuming the mortgage liable for a deficiency on foreclosure, and this would not be affected by the fact that she had no antecedent separate estate.

DIGEST OF DECISIONS OF THE SUPREME COURT OF THE UNITED STATES.

October Term, 1878.

MORTGAGE - FORECLOSURE

PRIORITY.-1. The order in which real estate which has been mortgaged, and subsequently sold at different times to different purchasers, shall be subjected to satisfaction of the mortgage is, where the rule is established by State statutes, or the decisions of State courts, a rule of property which will be followed by the Federal Courts sitting in such State. 2. The right of redemption, after sale on foreclosure, in Illinois, as decided in Brine v. Insurance Company, 6 Otto, re-affirmed. Orvis v. Powell. Appeal from the Circuit Court of the United States for the Northern District of Illinois. Opinion by Mr. Justice MILLER. Decree affirmed in part.

FRAUDULENT TRANSFER OF SHARES-LIABILITY OF OFFICERS OF COMPANY.-1. The officers of a company are the custodians of its stock books, and it is their duty to see that all transfers of shares are properly made, either by the stockholders themselves or persons having authority from them. 2. To create an estoppel there must be some act or declaration indicating an authorization of the use of the names, by which the company was misled, or a subsequent approval of their use by acceptance of the moneys received. 3. The guardian of plaintiffs, who were minors, placed certain certificates of shares of stock in the defendant company in a box, which she put for safe-keeping in a bank of which her brother was an officer, giving her brother the key to the box. The brother took the certificates, forged the names of the plaintiffs to a transfer thereof, signed his own name as attesting witness, and sold the stock. After a portion of the stock had thus been disposed of, the guardian obtained the box from the bank, but returned it without opening it or exam ining its contents. The brother was known to the guardian to be insolvent, and had appropriated to his own use some of the guardian's own funds. On the forged transfers, the stock standing in the plaintiffs' names on defendant's books, was transferred thereon by defendant to those purchasing from the brother. Held, that an action in equity would lie to compel defendant to replace, in the name of plaintiffs, such stock, and to issue to them proper certificates of the same, and to pay to them the dividends on the shares since such transfer, or for judgments for the value of their respective shares, and that the acts of the guardian, in intrusting her brother with the key to the box, etc., would not estop them from maintaining the action. Davis v. Bank of England, 2 Bing. 393; Hilgard v. South Sea Co., 2 P. Wms. 76; Stoman v. Bank of England, 14 Simons, 475; Taylor v. Midland Railway Co., 28 Beavan, 287; Ashby v. Blackwell, 2 Eden, 299; Lowry v. Commercial and Farmers' Bank of Baltimore, Taney's C. C. Decisions, 310; Sewall v. Boston Water Power Co., 4 Allen, 277; Prott Ex., v. Taunton Copper Co., 123 Mass. 36; Chew v. Bank of Baltimore, 14 Md. 299; Pollack v. National Bank, 7 N. Y. 274; Weaver v. Barden, 49 N. Y. 286; Cohen v. Gwynn, 4 Md. Ch. Dec. 357; Dalton v. Midland Railway Company, 22 Eng. L. & Eq. 452; Swane v. North British

Australian Co., 7 Hurl. & Nor. 603.

Western Union Tel. Co. v. Davenport. — Appeal from the Circuit Court of the United States for the Southern District of Ohio. Opinion by Mr. Justice FIELD. Decree affirmed.

POLYGAMY- CONSTITUTIONAL LAW-CHALLENGE OF JUROR-INTENT-CHARGE OF JUDGE.-1. Section 808, Rev. Stat., was not designed to regulate the empaneling of grand juries in all courts where offenders against the laws of the United States can be tried, but only in the circuit and district courts of the United States. This leaves the territorial courts, when exercising the powers of courts of the United States, free to follow the territorial laws fixing the number of persons of which a grand jury shall consist. 2. On a challenge for principal cause on the ground that a juror has formed an opinion as to the issue to be tried, the court is practically called upon to determine whether the nature and strength of the opinion formed is such as in law to raise the presumption of partiality. This presents a question of mixed law and fact to be tried, so far as the fact is concerned, upon the evidence. The finding of the trial court upon the question of fact ought not to be set aside in a reviewing court, unless the error is manifest. No less stringent rules should be applied by the reviewing court in such a case than those which govern in the consideration of motions for new trials because the verdict is against the evidence. 3. If a juror is challenged for principal cause, and the challenge sustained, the judgment will not be reversed upon error if it appears that, although the challenge was not good for cause, it was for favor. 4. Although the Constitution of the United States provides that in all criminal prosecutions, the accused shall be confronted with the witnesses against him, if it appears that a witness has been wrongfully kept away from the trial by the procurement of the accused himself, evidence may be given of what the witness swore to upon a former trial of the accused for the same offense under another indictment, when the accused was present and had an opportunity to cross-examine. 5. The constitutional guaranty of religious freedom contained in the first amendment to the Constitution takes away from Congress the power of legislation in respect to mere religious opinion and belief, and also in respect to the profession and propagation of principles, but leaves it free to reach actions which are in violation of social duties, or subversive of peace and good order. 6. Sec. 5352, Rev. St., for the punishment of bigamy in the territories and other places over which the United States has exclusive jurisdiction, is constitutional. 7. Although a criminal intent is in general a necessary element of erime, if one knowingly does that which is made criminal by the law of the land, he is not excused from guilt because of his professed religious belief that the law ought not to have been enacted. 8. The trial-judge charged the jury as follows: "I think it not improper, in the discharge of your duties in this case, that you should consider what are to be the consequences to the innocent victims of this delusion. As this contest goes on they multiply, and there are pure-minded women and there are innocent children-innocent in a sense even beyond the degree of the innocence of childhood itself. These are to be the sufferers; and as jurors fail to do their duty, and as these cases come up in the Territory of Utah, just so do these victims multiply and spread themselves over the land." Held no error. While every appeal of the court to the passions, or the prejudices of a jury should be promptly rebuked, and while it is the imperative duty of every reviewing court to take care that wrong is not done in this way, we see no just cause for complaint in this case. Congress, in 1862, 12 Stat. 501, saw fit to make bigamy a crime in the territories. This was done because of the evil consequences that were supposed

to flow from plural marriages. All the court did was to call the attention of the jury to the peculiar character of the crime for which the accused was on trial, and to remind them of the duty they had to perform. There was no appeal to the passions; no instigation of prejudice. Upon the showing made by the accused himself, he was guilty of a violation of the law under which he had been indicted, and the effort of the court seems to have been not to withdraw the minds of the jury from the issue to be tried, but to bring them to it; not to make them partial, but to keep them impartial. Reynolds v. United States.-In error to the Supreme Court of Utah. Opinion by Mr. Chief Justice WAITE. Judgment affirmed.

AN AGREEMENT TO PAY A REASONABLE ATTORNEY' FEE in the body of a promissory note, if it is "collected by suit" is absolutely void; it is contrary to the policy of our laws; it is an agreemeet to pay a penalty, and tends to the oppression of the debtor and to encourage litigation. Opinion by HINES, J.-Witherspoon v. Musselman.

MARRIED WOMAN-EFFECT OF DEED AND MORTGAGE OF.-1. The deed of a married woman, like that of one sui jnris, is good against a purchaser for a valuable consideration, or against creditors from its execution, if it is legally lodged for record within sixty days thereafter, and if not legally lodged for record within that time it will be effectual whenever so lodged, and from the date of such lodgment. Gen. Stats., ch. 24, § § 10, 11, 14, 15, 19, 21, 22, 23. 2. The mortgage of a married woman, like that of one sui juris, is good when legally lodged for record. The mortgage of a married woman is enforced in this case, although it was not lodged for record for more than a year after it was acknowledged. Opinion by HINES, J.-Finley v. Spratt.

GUARDIAN AND WARD MARRIAGE OF FEMALE GUARDIAN-APPOINTMENT OF SECOND GUARDIAN. -1. The marriage of a female guardian does not dissolve the relation of guardian and ward. While the marriage of a female guardian may be sufficient cause for her removal in the absence of any consent by her husband that she should remain guardian, it does not dissolve the relation of guardian and ward. 2. The surety of a female guardian who abandoned her right to the custody of her wards and their estates, under the belief that her marriage had extinguished her right, remained responsible for the estate then in her hands, and for all other money, choses in action, and other estate, that ahould have been collected or taken control of by her as guardian after that time. 3. There can not be two guardians of the same ward at the same time in this State, as in this case, one appointed by the Woodford county court in 1863, the other appointed by the Jefferson county court in 1868, the latter having been appointed under the belief that the marriage of the first extinguished her right as such guardian. The appointment of the second guardian was void; his bond as such guardian was not a good statutory bond, but was a good common law bond against him and his surety thereon, and such surety is liable for all moneys, choses in action, and all other estate which came