to prevent the collection of plaintiff's judgment and defeat the lien thereof; that the said grantors had no right or authority, under the terms and provisions of the will, to make said deeds, and the same were not made under the order of court, or in the course of administration of said estate, or pursuant to any power contained in the will, nor for the purpose of settling the estate of the deceased, nor under any order of distribution thereof; that the said sales of real estate were not necessary to the payment of debts of the estate or legacies, nor was any considerable portion of the proceeds of said sales and mortgages used for such purposes, and that the same were made for the purpose of enabling the said Otis Sprague to defraud his creditors, and particularly the plaintiff herein; that in pursuance of some subsequent secret arrangement, not disclosed on the county records and not known to the plaintiff, the property described in said two deeds and mortgages was, prior to the commencement of this action, turned over to the defendant, Provident Life & Trust Company, and ever since has been, and now is, held by said company under a claim of full ownership thereof; that said premises are yielding a rental of about $700 per month, and the same is being collected by said company, and all right of lien by reason of plaintiff's judgment is denied by said defendant; that by reason of the said conveyances and the said mortgages and said secret arrangement, and the said claim of title to said premises and possession thereof by said defendant company, the plaintiff is obstructed in the enforcement of his lien and the payment of his judgment; that there is no property out of which to make payment of plaintiff's judgment, other than that covered by said deeds and mortgages, and described in the complaint herein; that the executors, and especially Otis Sprague, are insolvent and without property of any kind, except the premises claimed and possessed by the defendant, Provident Life & Trust Company; that Otis Sprague has been insolvent ever since the rendition of plaintiff's judgment, and that execution was not issued on said judgment prior to the year 1895, because the executors had possession and control of said premises, and were entitled to one year's time within which to pay the debts and distribute the property of the estate; that at the time this action was commenced the said executors and the defendant, Provident Life & Trust Company, with intent to further obstruct and defeat the collection of plaintiff's judgment, were colluding together to sell and convey the premises to an innocent purchaser, who, without knowledge of the fraudulent designs and purposes thereby intended, might buy the premises, believing that he would get a clear title thereto, because of certain provisions in the will empowering the executors to sell property of the estate for the payment of debts and legacies, in that a lis pendens was filed by plaintiff, giving notice of the commencement of this action, and describing the property involved

and the lien claimed by plaintiff as set forth in his complaint; that subsequently to the return of the unsatisfied execution the plaintiff caused another execution to be issued and levied upon the 'property in controversy, and the same was advertised for sale by the sheriff, whereupon the defendant, the Provident Life & Trust Company, applied to the federal court for an injunction against this plaintiff, alleging that it was the absolute owner of the said real estate, and upon the prayer of said company an injunction was issued restraining the sheriff and this plaintiff from selling said property on said execution; that the said superior court had theretofore acquired jurisdiction over the subject-matter of this action and th parties thereto; that the said estate and the sail executors are under the control of the said superior court and subject to its orders, to the exten of administering their trust with just regard to the rights of all parties interested in the assets of said estate, the said federal court being without jurisdiction in said matters; that by reason of the conditions alleged the said one-fourth interest in said real estate will not sell for anything near its value, and but for a small portion of plaintiff's judgment, unless before such sale the lien of plaintiff is adjudged valid, and that if said lien be adjudged valid the said one-fourth of said premises will sell for much more than if sold under the present conditions; and that by reason of unpaid taxes, and the taxes accruing upon the said premises, and the depressed condition of values of property in Tacoma, the said one-fourth interest will not sell for sufficient to fully pay plaintiff's judgment, interest, and costs, and it is necessary that one-fourth of the rents of said premises be brought into court and preserved for that purpose. To this complaint the Provident Life & Trust Company interposed a demurrer upon the ground that it failed to state facts sufficient to constitute a cause of action against said defendant, which demurrer was sustained by the court. The plaintiff elected to stand upon his complaint, and refused lo further plead; and thereupon the court dismissed his action, and gave judgment against him for defendants' costs and disbursements. The plaintiff appeals.

The sole question for determination is. as we have seen, whether the complaint, upon its face, states facts sufficient to entitle the appellant to equitable relief. It is asserted in the brief of the appellant that the court below sustained the demurrer to the complaint for the reason that, in its opinion, creditors' bills have been abolished in this state by force of our statutes in aid of executions on judgments at law. This statement is disputed by the learned counsel for the respondent, who claims that the demurrer was sustained because it appeared from the allegations of the complaint that appellant had an adequate remedy at law, and therefore did not need the aid of equity. The record does not disclose upon which, if either, of these theories the learned court acted, but we are of the opinion that the judgment can

not be sustained upon either of the grounds suggested by counsel. This court has repeatedly entertained actions to set aside fraudulent conveyances, and subject property so conveyed to the satisfaction of judgments, and this is conceded by counsel for the respondents. Nor does the fact that a party may have a remedy at law necessarily preclude him from invoking the aid of equity in cases of this character. If the legal remedy is inadequate to afford full relief, resort may be had to equity in proper cases. Indeed, it is a well-established principle that equity has concurrent jurisdiction with law over frauds, under statutes relative to fraudulent conveyances. Wait, Fraud. Conv. (2d Ed.) § 51; Bump, Fraud. Conv. (4th Ed.) § 530. And the creditor himself may select the forum in which the question of fraud shall be determined, or, in other words, he has the option to submit the determination of the question either to a court of law or a court of equity. "But," says Mr. Bump, "the remedy most frequently used is a bill in equity, because a court of equity sifts the consciences of the parties and removes the cloud from the title. Fraud constitutes the most ancient foundation of its jurisdiction, and is a sufficient ground for its interposition. It may grant relief, although there is ample remedy at law; for no relief is adequate except that which removes the fraudulent title. The relief in equity is different and may be more beneficial than that given by the law." Bump, Fraud. Conv. (4th Ed.) § 532. And in Wait on Fraudulent Conveyances it is stated that "the existence of a remedy at law does not interfere with the right of a creditor to resort to a court of equity to secure a cancellation of a fraudulent conveyance, as an obstacle in the way of the full enforcement of a judgment, and a cloud on the title to the property sought to be reached. The creditors' bill, or a suit to clear the fraudulent transfer, is, for many reasons, entitled to preference as a means of relief. Should the creditor attempt to sell the disputed property arbitrarily under execution, bidders would be deterred from purchasing, lest they should buy a lawsuit; hence the market value of the land embraced in the covinous transfer is practically destroyed. Then the seizure of the property subjects the creditor to the peril incident to proving that the transfer was fraudulent, and, in the event of failure to establish fraud, of paying damages for the unwarrantable interference, seizure and sale." Wait, Fraud. Conv. (2d Ed.) § 60. In 5 Enc. Pl. & Prac. p. 402, the writer observes: "The remedy of the judgment creditor by a sale under execution of the premises fraudulently conveyed does not affect the jurisdiction of equity, as the creditor has the right not only to have the property subjected to the payment of his judgment, but to have it done in such a manner that it will bring its fair market value." And on page 392 of the same volume it is said that the most common instance of a creditors' bill is where property legally liable to execution has been

fraudulently conveyed or incumbered, so that, although the property might still be sold on execution, it would not sell for an adequate price, and a suit is brought to clear away such conveyance or incumbrance. The law as laid down by these text writers is in accordance with the overwhelming weight of authority. In fact, no decisions announcing a contrary doctrine have been cited by counsel, and we have observed none. In Cornell v. Radway, 22 Wis. 260, the court said: "The existence of the [judgment] lien, without adequate remedy for enforcing it at law, by reason of the fraudulent or inequitable obstruction interposed by the defendant, is sufficient to give a court of equity jurisdiction." And in Zoll v. Soper, 75 Mo. 460, which was an act to subject land to the payment of a judgment, it was held that, "while the creditor might have the land sold on execution, equity will not compel him to pursue that ruinous course." See, also, Freem. Judgm. (4th Ed.) § 350; Pom. Eq. Jur. § 1415, and note; Black, Judgm. § 423; Metzger v. Burnett (Kan. App.) 48 Pac. Rep. 599, 4 Am. & Eng. Ency. Law (1st Ed.) 576; Taney v. O'Connell (Colo. Sup.), 27 Pac. Rep. 888. While it is true that the appellant, if he had been permitted to do so. might have sold the premises in controversy on execution in the first instance, it is equally true, under the authorities above cited, that he was not obliged to pursue that course. He had the right, under the averments of the complaint, which are admitted to be true by the demurrer. to proceed in equity to have the obstructions in the way of execution removed. We are convinced that the complaint, viewed in the light of the authorities, states a cause of action; and the judgment is therefore reversed, and the cause remanded, with directions to overrule the demurrer.

NOTE.-Right of Creditor to Maintain Creditors' Bill to Set Aside Fraudulent Transfer of Debtor's Property.-Where a debtor conveys his land in fraud of creditor, the creditor may, at his election, sue to set aside the fraudulent deed and subject the land to the payment of the debt, or he may sell the land un. der the execution before ascertaining the debtor's interest therein, and then sue to set aside the fraudulent deed. Lionberger v. Baker, 88 Mo. 447; Ladd v. Smith, 107 Ala. 506; Howland v. Knox, 59 Iowa, 46; Lynn v. Le Gerse, 48 Tex. 138. The latter remedy, while the most dangerous and one not generally to be recommended, is sometimes advantageous and advisable. As, for. instance, where the proof of the fraudulent conveyance is absolutely convincing so as to practically leave no doubt of its being set aside-in such case the possibility of buying a lawsuit deters bidders and enables the creditor very often to purchase his debtor's interest at a sacrifice and reap quite a substantial profit on the subsequent setting aside of the fraudulent conveyance. Shrewd commercial lawyers appreciate their election of remedies in cases of this character and are quick to see the advantage of one mode of procedure over the other, in proportion as their case is doubtful or certain. In either case, it affords quite a profitable speculation to certain classes of investors, but has been regretted by the courts for this very reason. In Lionberger v.

Baker, supra, after admitting that the creditor had the election either by bill in equity to set aside the fraudulent conveyance and then have the property sold to satisfy his debt, or by sale under execution to sell the interest of his debtor in the property conveyed and then have the fraudulent conveyance set aside, the court said: "It is to be regretted that the former course is not more frequently pursued, and thereby avoid the sacrifice of property and speculation attending such execution sales, of which this case is no ex. ception; but the right of the creditor to do either is well established in this State."

In most cases, however, where the creditor has no desire to speculate, the remedy at law by sale under execution is not adequate, and even if it were it would not affect his right to proceed by a creditors' bill in equity to have the fraudulent conveyance set aside and the property subjected to the payment of his judgment. Lathrop v. McBurney, 7i Ga. 815; Abbey v. Commercial Bank, 31 Miss. 434; Gaines v. Exchange Bank, 64 Tex. 18; National Bank v. Hollerin, 31 Neb. 558. In Martin v. Atchison, 2 Idaho, 590, the court held the creditor to have the right to proceed in equity to enforce his claim against the debtor who has fraudu lently conveyed his property, in spite of the fact that he had a remedy at law by execution, and the court assigns as a reason for its holding that the remedy by sale under execution is not adequate, because no one would purchase the property at anything over a nominal sum, and the result would be that the creditor would be compelled to buy in the property and then bring an action to clear the cloud against the title. In Chambers v. Sallie, 29 Ark. 407, a debtor made a fraudulent conveyance and died, and a judgment creditor, having probated his claim, and had it allowed and classed in the third class, filed a bill in chancery to have the conveyance set aside and the land subjected to the payment of his claim. It was held that the court of chancery had jurisdiction to set the sale aside, and subject the property to the payment of the debts, and might retain its jurisdiction to settle and dispose of the equitable rights of the parties. In Decker v. Decker, 108 N. Y. 128, it was held that an action in the nature of a creditors' bill lies to reach property in the hands of one who purchased it at an execution sale, and holds it for the benefit of the debtor to defraud the creditors of the debtor. In Pierstoff v. Forges, 86 Wis. 128, it was held that a creditor might prosecute a bill to set aside a fraudulent conveyance, notwithstanding the fact that the property fraudulently conveyed still remained in the open possession of the debtor. In Lee v. Hollister, 5 Fed. Rep. 752, it was held that equity has jurisdiction of a bill by a creditor to set aside conveyances made to the debtor's wife in fraud of his creditors, and to subject the property to the payment of the creditors' claim; the remedy at law being neither plain nor adequate. In Rozek v. Redzinski, 87 Wis. 525, it was held that a judgment creditor who has obtained a lien by levy of execution on his debtor's property has the right to maintain an equitable action to set aside fraudulent claims of third persons on the property, independent of Rev. Stats. § 3186, providing that any. one having a lien on land shall have the same right to maintain a suit to quiet title as the owner of the legal title.

Statutes expressly authorizing the sale of the prop

veyed by the judgment debtor has a remedy by eject. ment, and cannot, before obtaining possession, come into equity to secure a cancellation of the fraudulent transfer. Smith's Executor v. Cockrell, 66 Ala. 64. In Indiana a statute provides that any creditor of a decedent whose claim shall have been filed and allowed by the court, may file his petition showing the insufficiency of the personal estate of the decedent to pay the liabilities, and that the deceased died owning real estate liable to be made assets for the payment of his debts, and praying an order requiring the execu tor or administrator to proceed to sell it for the payment of such debts. Held, that such statute does not prevent a creditor from maintaining an action to set aside a fraudulent conveyance made by the decedent. Battorff v. Cavert, 90 Ind. 508. In Massachusetts, however, where an insolvent gives notes, without consideration, to persons aware of his insolvency, and procures his property to be attached and seized on execution, a bill will not lie to vacate the judgment and to set aside a levy theron, as § 96 of Pub. Stats. ch. 157, provides that when an insolvent with a view to give a preference procures his property to be attached and seized on execution, the person to be benefited thereby having reasonable cause to believe him insolvent, such transaction shall be void, and the assignees may recover the value of the property from the person so benefited, furnishes a complete remedy at law. Ames v. Sheehan, 161 Mass. 274. Proceedings in aid of execution do not furnish such an adequate remedy at law as will preclude equitable interference to set aside a debtor's fraudulent conveyance. Scanlan v. Murphy, 51 Minn. 536; Klosterman v. R. R., 8 Wash. 281; Faber v. Matz, 86 Wis. 370. In North Carolina, however, it was held that creditors, electing to sell land fraudulently conveyed by the judgment debtor, treating the conveyance as void under St. Eliz., cannot afterwards invoke the jurisdiction of equity to set such conveyance aside, nor can the execution purchaser do so, since the relief already availed of is complete. Thigpen v. Pitt, 54 N. Car. 49.

These cases have been carefully selected to show the trend of the best considered authorities in up holding that ancient and effective remedy of equity-the creditors' bill-in setting aside convey. ances in fraud of creditors and in enforcing payment of a judgment from land thus fraudulently conveyed.

JETSAM AND FLOTSAM.

A BRIEF AGAINST THE UNANIMITY RULE.

Perhaps as terse an argument in favor of abolishing the unanimity rule in jury trials so that verdicts may be rendered by a majority or other proportion of the jury is the following by Judge A. B. Grace of Pine Bluff, Ark., reported by the American Lawyer. Though not elegant, it certainly is forceful. He says: "In every relation of life in America where the result is made to depend on the opinions and decision of a number of persons the principle of majority rule has been adopted, with the sole exception of the verdict of a jury. A majority of one vote in each house of a general assembly or the congress suffices to create, repeal, or change a positive law, regardless of the magnitude of the interests involved, as in the case of

change the entire policy of the government, and bring prosperty or ruin to seventy millions of people. And yet lawyers-good lawyers, honest and patriotic lawyers will roll their eyes in horror at the very suggestion that it would be sensible to apply the same principle in deciding a replevin suit for a 'ticky' calf or a pestle-tailed pony. And yet, again, this very calf or pony case, when it has ascended by appeal from the justice of the peace to the circuit court, and thence to the supreme court of the state, is decided by a bare majority of the judges, if they should happen to differ. In a capital case, if three supreme judges vote to break the appellant's neck and two decide that he ought to go scot-free, the accused gentleman must suffer the inconvenience of be ing hanged until he is dead. So the Supreme Court of the United States if five learned gentlemen are of the opinion that an income tax, for instance, is unconstitutional, and four other equally 'potent, grave, and reverend seigniors' think that it is not, the majority of one prevails and the solemn act of the senate and house of representatives of the United States becomes a nullity. So again, in bodies having purely ministerial or executive functions, as in the case of boards of directors of corporations, for example, the majority rules, and the rights of the minority must give way to the will of the majority when lawfully expressed."

EXAMINATION OF WITNESSES.

The Hon. Joseph F. Daly, ex-justice of the Supreme Court of New York, writing for "The Brief," makes, among others, the following suggestions for the examination of witnesses, which we have selected as especially valuable:

It injures a cause for counsel to find fault with his own witness.

The examination and cross-examination of witnesses develop the strength or weakness of the case. To manage your own and your adversary's witnesses with ease, grace and decorum should be the particular study of counsel.

Experienced cross-examiners humor the disposition of witnesses to display superior knowledge of the matter at issue and a good deal besides, and they readily fall into the trap prepared for them by the cross examiner with the encouraging manner.

The calling of witnesses whom your adversary will be compelled to call ought to be avoided if possible, as the chances are that they may be unfriendly, and it is better not to make them your own witnesses, since you may not then impeach them.

If I were asked what is the first qualification for a good cross-examiner I should say, "an intimate knowledge of human nature." To know its tendencies under certain conditions, its frailties and weaknesses, is to have a dishonest or an imprudent witness at your mercy.

Incompetent and irrelevant testimony volunteered by a witness may be suffered until the full answer is out and then be stricken from the record by motion; but it is generally wise to let adverse witnesses talk freely. More is to be gained by the chance of their saying too much than by coercing them into keeping to strict rules.

Nothing, it is certain, is so fatal as a suspicion of disingenuousness on the part of counsel, and no where is it more distasteful to a jury than in the

treatment of the testimony of witnesses. It is important, for example, to always quote a witness correctly when referring to his evidence in cross-examination or in summing up to a jury.

While I do not favor too much technicality in this regard, I consider it always prudent to object to leading questions. The leading questions of counsel who is "intoxicated by the exhuberance of his own verbosity" is one of the most insidious and dangerous things to be apprehended from an adversary, and should be promptly met by persistent objection.

It should be borne in mind that if you have to subpoena a hostile witness to produce a book or document, you may call him to the stand and ask for the production of writings, without swearing him as a witness. This is important as such evidence is only to be gotten from persons who are in many cases friendly to, if not implicated with, the other side.

It would be proper to impress upon the most honest of witnesses that their impressions, not founded upon recollection, as to what possibly or even probably occurred, must be dismissed from the mind and the absolute memory only given in evidence on the direct. If the opposing counsel seeks to lead the witness into the realms of surmise he may be safely followed, but it will never do to let him discover the witness there and drag him out as a terrible example of mendacity.

Experienced lawyers expect that even candid and respectable witnesses will be tempted to round out their version of a transaction with matter of mere surmise. The invented portions will of course change with every repetition, the matters of pure memory alone remaining the same. Counsel will, therefore, generally ask a witness to repeat on crossexamination what has been given on the direct and will easily distinguish by the change of words and phrases where the imagination has come to the aid of recollection in the details of a transaction.

One of the most skillful of our young trial lawyers, whose ability in cross-examination has been over and over again developed, has an extraordinary faculty for seizing upon a chance exaggeration by a hostile witness and clinging to it with tenacity until the admission of falsehood is obtained. He will repeat his question, "Why did you say so and so?" or "It was not true, was it?" in spite of a dozen evasions unti the witness has no recourse except to confess that h or she had added what was not the fact to testimony given under the solemnity of an oath.

Cross examination may be compared to a sword without a hilt. Unless it is handled carefully it may injure the one who uses it more than it hurts his adversary. Where counsel would test the accuracy or honesty of a witness by inquiring into a multitude of circumstances, he must be careful lest this very process may elicit the most convincing corroboration of the witness' direct testimony and leave the counsel in the sorry plight of having made his adversary's case stronger than it was before. It may be safely said that unless counsel feel pretty sure of their ground and know the case of the other side thoroughly it is better to be frugal in cross-examination and confine questioning to the thorough exposure of palpable error or bias.

Since it is indispensable that witnesses should be thoroughly investigated before trial and their honesty and character put to the severest tests, it is a proper precaution to warn them not to be embarrassed by questions of the adversary as to whether they have talked with the counsel or with anybody about the testimony they were to give. Ignorant witnesses connect these questions with some imputation that they have been coached for examination, and in their fear to injure the cause for which they testify are apt to hesitate. It is surprising how successful this threadbare scheme for confusing witnesses proves to be in nine cases out of ten. It is generally counsel who, it may safely be inferred, confer most largely with their own witnesses who are prone to this kind of cross-examination, but it is a very easy and effective way of beginning a cross-examination, and is resorted to like a familiar opening in a game of chess. The only way to check your adversary is to warn your witnesses to answer frankly on the subject and never to be afraid to tell how often and to whom they have told the story they are telling on the stand.

BOOK REVIEWS.

THE TAX LAW OF THE STATE OF NEW YORK, SECOND EDITION.

The first edition of this valuable work was published in 1898, since which many changes have been made in the tax law. The special franchise tax law was enacted in 1899; some important decisions have been rendered by the courts in the enforcement of this law which are cited in the work. Since the pub. lication of the first edition many cases have been de cided relating to the provisions of the tax law. The book contains forms for lawyers, assessors, collectors and other officers. The author is H. Noyes Greene, of the Troy bar, author of "Law of Taxable Transfers," "Practice Time Table," "Law of Negotiable Instruments," "Highway Law, etc." There is also added to the book a very valuable chapter on the Powers and Duties of Assessors, by J. Newton Sierro, council for the state board of tax commis. sioners, author of special actions and special proceedings. The book contains 365 pages, 8vo., bound in law sheep. Published by Matthew Bender, Albany, N. Y.

HUMORS OF THE LAW.

"Taking into consideration the things Sharp has had to contend against, I think his success as a lawyer has been remarkable."

"Why, what did he ever have to contend against?" "Everything. He came of a wealthy family. He didn't have to work his way through college. He never studied by the light of a pine torch, never had to drive dray, never walked six miles to school, and wasn't compelled to borrow his books. He had every possible facility, and yet he has done well from the very start.”

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2. BENEFICIAL ASSOCIATIONS-Actions for BenefitsConditions-Burden of Proof.-Where action is brought by a member of a brotherhood order against the order for indemnity for disability, the constitution of which order provides that the same shall be paid to disabled members in good standing, failure of such member to prove his good standing will not defeat his claim, in the absence of evidence to the contrary, since the burden of proof is on defendant to show that plaintiff was not in good standing.- LILLIE V. BROTHERHOOD OF RAILWAY TRAINMEN, Iowa, 86 N. W. Rep. 279.

3. BILLS AND

NOTES-Guarantor-Notice, of Dis. honor.-One who guaranties the payment of a note is not entitled to notice of dishonor, to which an ordinary indorser of a negotiable paper is entitled.-FARRER V. PEOPLE'S TRUST Co., Kan., 64 Pac. Rep. 1031. 4. BILLS AND NOTES-Indorsement in Blank-Notice of Protest.-Code, § 3049, provides that the blank indorsement of an instrument by a person not the payee, indorsee, or assignee thereof shall be a guaranty of the contract, and that the guarantor is chargeable without notice if he has received no detriment from the want thereof. Plaintiff brought action on notes indorsed in blank by the makers against the guarantors, who were strangers thereto, alleging that no protest had been made, but that defendants had received no detriment thereby, because the makers and