conduced to the adultery," must be such neglect as conduced to his wife's fall, and not neglect conducing to any particular act of adultery subsequent to her fall. The case of Morrison v. Morrison, 136 Mass. 310, re

MARRIAGE -DIVORCE-ADULTERY-CONNIVANCE.The fact that a husband suspects his wife of infidelity, and watches her for the purpose of obtaining proof, and stands by and sees her go with another man, is not sufficient to charge him with connivance, although he in fact wishes her to commit adultery in order that he may secure a divorce. It is true that he could have prevented his wife from committing adultery, and did not. On the contrary, he wished she would that he might have evidence on which he could get a divorce. But he did not make or aid in any way in making the opportunity. He did no overt act, unless keeping still was one, which it clearly was not. It was not a case where he supposed his wife was about to commit adultery for the first time, and where it would have been his duty to have given her the assistance which husband and wife are mutually expected to give to each other. It certainly cannot be held that a husband who suspects his wife of infidelity can take no means to ascertain the truth of his suspicions without being deemed guilty of conuivance. "There is a manifest distinction," says the court in Robbins v. Robbins, 140 Mass. 531, "between the desire and intent of a husband that his wife, whom he believes to be chaste, should commit adultery, and his desire and intent to obtain evidence against his wife, whom he believes already to have committed adultery, and to persist in her adulterous practices whenever she has opportunity." Merely suffering, in a single case, a wife whom he already suspects of having been guilty of adultery, to avail herself to the full extent of an opportunity to indulge her adulterous disposition, which she has arranged without his knowledge, does not constitute connivance on the part of the husband, even though he hopes he may obtain proof which will entitle him to a divorce, and purposely refrains from warning her for that reason. He may properly watch his wife, whom he suspects of adultery, in order to obtain proof of that fact. He may do it with the hope and purpose of getting a divorce, if he obtains sufficient evidence. He must not however make opportunities for her, though he may leave her free to follow oppor tunities which she has herself made. He is not obliged to throw obstacles in her way, but he must not smooth her path to the adulterous bed. 2 Bish. Mar. & Div. (5th ed.), § 9; Timmings v. Timmings, 3 Hagg. Ecc. 76; Stone v. Stone, 1 Rob. Ecc. 99-101; Phillips v. Phillips, 10 Jur. 829. The law does not compel a husband to remain always bound to a wife whom he suspects, and it allows him, as it does other parties who think they are being wronged, reasonable scope in their efforts so discover whether the suspected party is or is not guilty, without themselves being adjudged guilty of conniving at the crime which they are seeking to detect. Robbius v. Robbins, supra. In a libel for divorce for desertion, the willingness, or even the desire, of the deserted party to be deserted, so long as it is not expressed in conduct or acts to the other party, will not bar a divorce. Ford v. Ford, 143 Mass. 577. Of course, as the court says in that case, there is always the difficulty of believing that the desire or willingness did not manifest itself in conduct or acts expressive of it to the other party. But nothing of the sort appears here. In St. Paul v. St. Paul, L. R., 1 Prob. & Div. 739, the court held that the neglect of the husband which would justify the court in withholding a decree in his favor, under a statute which provided that the court might do so where the husband was

the husband, after he had been cautioned to watch his wife, made opportunities for her and her suspected paramour to be together alone, witnessed without objection acts of considerable familiarity between them, said nothing whatever to his wife intimating any disapproval of her conduct, and in other ways acted in such a manner as to induce the adultery for which he was watching. Mass. Sup. Jud. Ct., June 27, 1891. Wilson v. Wilson. Opinion by Morton, J.

NEGLIGENCE-DRIVING CATTLE THROUGH STREETS. -In an action for injuries by being knocked down by a steer, it appeared that the steer was being driven along the street by defendants' servant, who was riding a horse, and was running along the sidewalk very fast, iu a wild mauner, foaming at the mouth, and was "feverish and overheated." Held, that there was evidence from which the jury might infer that the animal was negligently driven. Persons driving cattle through the streets of cities or towns are bound to use the utmost diligence and care to avoid injuries to passers-by. Their liability is somewhat in the nature of that of a common carrier. Ficken v. Joues, 28 Cal. 618. The court in that case says: "It is a matter of importance to understand what is the rule in respect to the degree of care which parties engaged in driving cattle, reared in the rural portions of the country, through the streets of a populous town or city, must observe and exercise in order to prevent the happening of injuries to those lawfully in such streets, and necessarily exposed to dangers which they may not have the power to avert, and from which there may be no way of escape. It is impossible for a person acquainted with the disposition of cattle raised upon farms or in the open country, notwithstanding they may be what are commonly known as 'tame cattle,' to be oblivious to the fact that, when brought into and conducted through the highways of a city, they are apt to become alarmed and excited by the presence of many people, and at the sight of new and strange objects, and by the noise and confusion around them on every side. From such exposure cattle often become wild and difficult of management, and not unfrequently some of them become fierce from fright, if not so before then, and dangerous to people who may not be aware of their presence. In all cases where, by the conducting of any lawful business, the lives and limbs of human beings are placed in peril, the law requires of the proprietors and managers of that business the utmost care and diligence. The driving of cattle through the streets of a city is attended with danger to persons who are of right there, and who can justly demand that the care, diligence and skill essential to their safety shall be commensurate with the necessities of the case. It is not impossible that injuries may happen in such cases, even though the utmost care and skill which the law exacts of the managers of such business may have been exercised, and before a person can be condemned in damages by the verdict of a jury, the party complaining of an injury resulting from negligence or want of skill in the conduct of that business must establish facts constituting a basis from which the fact in issue may be found." Besides the testimony of appellee above set out, there was evidence tending to show that the steer was "overheated and feverish," foaming at the mouth, running along in a wild manner, etc. These and other facts and circumstances proved upon the trial furnished the jury a basis for the conclusion that the cattle were overdriven or otherwise unskillfully handled by the driver,

from which they had a right to infer negligence. Ind. App. Ct., June 26, 1891. Eichel v. Senhenn. Opinion by Reinhard, J.

NEGOTIABLE INSTRUMENTS GUARANTY-PAROL EVIDENCE.-Where a third person writes his name across the back of a note, the presumption that he thereby guaranteed the note may be rebutted by parol evidence. Where the payee of a note indorses it by placing his name on the back of the instrument, a contract of indorsement is created, the liability assumed by the payee being established by the writing. Parol evidence to change or vary the terms or conditions of a contract is not admissible. Mason v. Burton, 54 Ill. 353; Johnson v. Glover, 121 id. 283; Jones v. Albee, 70 id. 34; Woodward v. Foster, 18 Gratt. 200. But where a person who is not the payee of a promissory note, but a third party, places his name on the back thereof, a different question arises. In such case the rule long established in this State is that it may be shown by parol evidence what liability was intended to be assumed. In an early case (Cushman v. Dement, 3 Scam. 497) where a third party wrote his name across the back of a note, it was held that the indorsement was prima facie evidence of a liability in the capacity of a guarantor, but the legal presumption was liable to be rebutted by parol proof. In Boynton v. Pierce, 79 Ill. 145, where the obligation of a guarantor arose, it was expressly held that the presumption that a party, not the payee, who places his name on the back of a note is a guarantor, may be rebutted by parol evidence. In Stowell v. Raymond, 83 Ill. 120, where the question again arose, the same rule was declared. The question again arose in Eberhart v. Page, 89 Ill. 550, and in deciding the case it is said: The indorsement of a note in blank by a third party raises a presumption only that it is intended thereby to assume the liability of guarantor, which may be rebutted by proof that the real agreement between the parties was different. From the cases cited it is apparent that this court is fully committed to the doctrine that, when a third party writes his name across the back of a promissory note, the presumption from the indorsement is that he assumed the liability of guarantor, yet parol evidence may be introduced to prove what liability was in fact assumed. It is conceded in the argument of appellants, that the cases cited fully establish the rule indicated, but it is insisted that these cases were virtually overruled by Johnson v. Glover, 121 Ill. 283. This is a misapprehension of the force and effect of that decision. In that case Johnson, who was the payee of a note, indorsed it in blank, and the note subsequently fell into the hands of Glover, who sued Johnson as a guarantor, and it was held that he was not a guarantor but an indorser, and that parol evidence was not admissible to vary or change the character of the liability he had assumed. It is there said: 66 The general rule is that the name of the payee appearing on the back of the instrument is evidence that he is indorser, and proves that he has assumed the liability of an indorser as fully as if the agreement was written out in words (citing authorities). Parol evidence is no more admissible to contradict or vary this contract than any other written contract." What was decided in this case, and what was said, had reference solely to a payee of a promissory note who had indorsed the note in blank, and had no bearing whatever upon the rights or obligations of a third party who had placed his name on the back of a note. Moreover it is manifest that there was no intention to overrule or modify the doctrine announced in Boynton v. Pierce, 79 Ill. 145; Stowell v. Raymond, 83 id. 120, and Eberhart v. Page, 89 id. 550, from the ruling in Bank v. Nixon, 125 id. 618. case was heard and decided some time after Johnson v. Glover had been decided, and the doctrine of Boynton, Stowell and Eberhart Cases was approved, and

This

those cases were cited as sustaining the rule announced. We think therefore that the ruling of the Circuit Court, in the admission of evidence, that the defendants might resort to parol evidence to prove what contract was made between the parties, was correct. Sup. Ct. Ill., March 3, 1891. Kingsland v. Koeppe. Opinion by Craig, J.

PROHIBITION-WHEN LIES.-Where a court, without jurisdiction, has issued a writ of quo warranto, to determine title to an office, a writ of prohibition will lie, although judgment of ouster with costs has been entered, and execution issued, when it appears that it has not yet been enforced. At the common law, so long at least as any thing remained to be done to carry a judgment into effect, a writ of prohibition might go, and when it went it took on such a form as the difficulties it was designated to meet demanded. Fitzherbert declared that, after judgment given an execution awarded in the county, or in other court baron, which hath not power to hold plea of debt of the sum of forty shillings, etc., or of damages in trespass amounting to such sum or more, the party defendant shall have a writ of prohibition unto the bailiffs, or unto the sheriff or officer of the court, that they do not execution; and, if they have distrained the party to make satisfaction, that then they release the distress, and that they revoke what they have done therein." Natura Brevium, 46a. The same idea bas found abundant expression in other common-law authorities and in this country. Lloyd Prohib. 67; Jones v. Owen (1848), 18 L. J. Q. B. 8; Marsden v. Wardle (1854), 3 El. & Bl. 695; White v. Steele (1862), 12 C. B. (N. S.) 412; Har. Ent. 450; State v. St. Louis Court of Appeals (1889), 97 Mo. 283. This feature of procedure in prohibition is no departure from the general principles governing remedies under the English system of law. In Chancery it has been universally recognized that, when the court obtained jurisdiction of a controversy, it would proceed to do complete justice therein, though part of the remedy afforded might be of such a nature (for example, the adjustment of damages) as ordinarily would require a hearing in a court of law. So in appellate practice to-day, a writ of restitution to restore appellant to what he may have lost by reason of an erroneous judgment is properly issuable as a part of the mandate to a trial court, reversing its judgment. Sup. Ct. Mo., May 15, 1891. State, ex rel. Rogers, v. Rombauer. Opinion by Barclay, J.

PARTNERSHIP-SALE OF ASSETS-FRAUD.-Two composing a partnership may uuite in selling the entire assets in payment of debts due individually by such members, and the sale, if made in good faith and without fraud, wil! be valid against creditors of the firm, notwithstanding the insolvency of the partnership; provided the transaction is not, as to any one of the partners, obnoxious to the statute against voluntary conveyances by insolvent debtors. If the value of one partner's share in the partnership property considerably exceeds in amount his individual debts settled by the sale, it amounts in law to a donation by him of such excess to his partner. It was held by this court in the case of Veal v. Veal (Ga.), 12 S. E. Rep. 297, that a mortgage given by a partnership on partnership property to secure a debt due by one of the partners was valid against creditors of the firm, and that this was especially true when the debt due by the individual member had, by consent of the partners, been made a debt of the firm. This doctrine, irrespective of the qualification as to making the debt that of the firm, is supported by Jones on Chattel Mortgages, section 44, there cited. In Veal's Case the question as to how the solvency or insolvency of the partnership would affect the transaction was not made or considered. Our Code, section 1953, gives every debtor the right to prefer one creditor to another, and to that end

* * *

he may give liens or sell property in payment of the debt. No distinction is made as to the kind of creditors who may be preferred, or as to the kind of property which may be used for this purpose. In this case it appears that the transfer of the partnership property to Cohen was signed by Lucas and McDuffie as a firm, and by each of the members individually. We think, under the section of the Code cited, and under the law generally, each of these members had the right with the consent of his partner to sell his share in the firm assets in payment of his individual indebtedness. As stated in the section above cited from Jones on Chattel Mortgages: "The rule preferring partnership property for the payment of partnership debts is for the benefit of the partners, and they may waive it. * * * The partners, while the partnership property is still under their control, have power to appropriate it to secure their individual debts. The mere preference of individual debts over partnership debts is not such a fraud upon partnership creditors that a court of equity will set it aside. The partnership creditors have no lien on the property of the partnership if the partners themselves have none." See also Story Part., § 358. It must not be overlooked | that, under our own statute, the right to prefer creditors is secured as well to insolvent as to solvent debtors; provided of course they exercise this right in good faith, and without fraud on the rights of others. The doctrine is laid down in Bates on Partnership that it is not uncommon for a partnership to use the right of absolute disposition of its property by employing firm funds to pay the separate debt of a single partner, and it is said, in effect, that this right is unlimited, except as controlled by statutes against voluntary conveyances in fraud of creditors and the similar provisions of the Bankrupt Law. Of course where this right is exercised for fraudulent purposes, the transaction will be void. Bates Part., §§ 565, 566. In Marks v. Hill, 15 Gratt, 400, it was held that "partnership effects may be applied, by the concurrence of the partners, to pay an individual debt of one of them, if the other receives a sufficient consideration therefor, though they may be unable to pay all their partnership debts." In Woodmansie v. Holcomb, 34 Kans. 35, it was held that while the partnership remains in existence, and in a solvent condition, it may, with the consent of all the partners, transfer firm property in payment of the individual debt of one of its members, and in the opinion on page 38, 34 Kansas, and 7 Pac. Rep. 605, Johnston, J.,

says:

"The decisions of the courts have gone further than this, and, although not unanimous, the weight of authority seems to be that mere insolvency, where no actual fraud intervenes, will not deprive the partners of their legal control over the property and of the right to dispose of the same as they may choose; and where the separate creditor purchases from the firm in good faith, and the individual indebtedness is a fair price for the property purchased, such purchase cannot of itself be held fraudulent as against the general creditors of the firm." The following cases are there cited in support of this assertion: Sigler v. Bank, 8 Ohio St. 511; Schmidlapp v. Currie, 55 Miss. 597; Case v. Beauregard, 99 U. S. 119; Bank v. Sprague, 20 N. J. Eq. 13; Wilcox v. Kellogg, 12 Ohio, 394; Gwin v. Sedley, 5 Ohio St. 97; Allen v. Center Valley Co., 21 Conn. 130; Rice v. Barnard, 20 Vt. 479; Haben v. Harshaw, 49 Wis. 379; White v. Parrish, 20 Tex. 688; Schaefer v. Fithian, 17 Ind. 463; McDonald v. Beach, 2 Blackf. 55; Ex parte Ruffin, 6 Ves. 119; Whitton v. Smith, 1 Freem. Ch. (Miss.) 231; Freeman v. Stewart, 41 Miss. 138; Potts v. Blackwell, 4 Jones Eq. 58. See also the notes to the case of Schmidlapp v. Currie, in 30 Am. Rep. 533, in which reference to many cases bearing on this subject will be found, and among them that of Sigler v. Bank, 8 Ohio St. 511, above cited, in which it was held that, where a creditor of a firm and one of

its members, with the assent of all the partners, bought of the firm in good faith, and at a fair price, goods to the amount of such joint and separate indebtedness, though with knowledge that the firm was insolvent in the popular sense of the term, such purchase was not fraudulent as against other creditors of the partnership. As will be seen above, in the quotation from the opinion of Johnston, J., in the case cited from 34 Kansas, he remarks that the decisions are not unanimous in holding "that mere insolvency, where no actual fraud intervenes, will not deprive the partners of their legal control over the property," etc. Accordingly we have found, in support of the contrary doctrine, the following cases: Wilson v. Robertson, 21 N. Y. 591; Menagh v. Whitwell, 52 id. 146; Clements v. Jessup, 36 N. J. Eq. 572; Arnold v. Hagerman, 45 id. 186; and Phelps v. McNeely, 66 Mo. 554. See also Davies v. Atkinson, 124 Ill. 474, and 2 Story Eq. Jur., § 1253. Nevertheless we are of the opinion that the true law of the case is as stated in the language taken from page 38 of 34 Kansas, and that the current of authority is in that direction. Ga. Sup. Ct., May 8, 1891. Ellison 7. Lucas. Opinion by Lumpkin, J.

WE

NOTES.

E are glad to observe that the Slander of Women Bill, by which imputation on a woman's chastity is made actionable without special damage, is amongst those which have received the royal assent. Threatened at one time by the serious opposition of the lord chancellor, the bill has been saved by the insertion of a clause cutting down a plaintiff's title to costs. It is very remarkable that a reform which has so frequently been advocated by so many high judicial authorities has been so long delayed. Lord Holt was the first, in Ogden v. Turner, 2 Salk. 696, to lay down the law as it has continued since his time till now, and the ground of his decision was that "this kind of defamation is punishable by a spiritual court," so that even the reason for the law ceased to exist so far back as 1855, when by 18 and 19 Victoria, chapter 41, the jurisdiction of the ecclesiastical courts in suits for defamation which had become "grievous and oppressive to the subjects of this realm" was formally abolished.-Law Journal.

We recently drew attention to Mr. Justice Collins' opinion upon the possible wisdom of our ancestors in disallowing the evidence of parties to a suit. Mr. Jus tice Vaughan Williams again drew attention to the subject last week in giving judgment in the case of Corcoran v. Phillips. The learned judge said it was a very disagreeable case, and he was sorry to say he had arrived at the conclusion that the principal witness on either side was unworthy of credit. It was a very shocking thing that people should come into court, pledge themselves to tell the truth, and then go and tell deliberate falsehoods, like those which had been told in the case before him. Our forefathers had perhaps more knowledge of human nature than we had when they would not allow the parties to a law suit to give evidence, because they felt they could not really trust such evideuce. This case went far toward proving our ancestors were right. He supposed that the people who came and told lies of this sort justified their action in their own hearts by saying that all that they wish for is that which is just and right, and that the end justifies the means. At all events he thought that that was so in the present case. In consequence of this state of things he had in this case been guided entirely by the documents. If judges would do their duty, and forward the papers in such a case to the proper quarter, there would probably in future be less need for such remarks.-Law Times.