The second section of our statute of frauds provides that no action shall be brought upon a promise to answer for the debt of another unless such promise be in writing.

There have been eighteen cases in the Court of Appeals in which, in actions on verbal promises, this section of the statute has been set up as a defense, but the court has, notwithstanding, enforced the verbal promise in all of these cases except four; thus establishing so many exceptions to the statute that it may well be asked whether it is any longer practically in force in this State.

These exceptions may be divided into five classes, as follows: 1st. Where a promise is made, not to the creditor, but to the debtor, to pay the latter's debt to the creditor, the promise is binding, though not made in writing. As where A verbally promised B that he would pay a note which B owed C, HeldA's promise was binding on him because made to B, the debtor, instead of C, the creditor, and that the right to sue on and enforce it belonged either to B or to C, though it was admitted that C could not have enforced the promise if it had been made. directly to him instead of to B, it not being in writing. This looks very like an evasion of the statute, as it allows C to ac

complish indirectly what he could not do directly-compel A to answer on a verbal promise for B's debt. (Spadone v. Reed, 7 Bush, 457; North v. Robinson, 1 Duv., 73; Williams v. Rogers, 14 Bush, 776.)

2d. Where one induces another to become surety for a third party by verbally promising to indemnify him, the promise, though verbal, is enforceable; thus W signed a note as surety upon the promise of A "to pay the note if the principal did not." The principal failed and W had the note to pay; he then set up A's promise to indemnify him, which the court enforced, though it was not in writing. It is very difficult to understand why this promise was binding. It is certain that the principal on the note was liable to W for the amount paid by him. A's promise then to indemnify W-to repay him what he might have to pay on the note-was plainly a promise to answer for the principal's debt. (Dunn v. West, 5 Ben Monroe, 495; Lucas v. Chamberlain, 2 Ben Monroe, 277.)

3d. Where one receives some new and distinct consideration peculiar to himself, and thereupon promises to assume a debt due by another to a third person, the promise is binding, though not in writing. Thus where A buys land of B, and verbally promises to assume and pay outstanding notes due on the land by a previous vendee; here the promise of A is said to be an original undertaking for a new consideration. This may or may not be so; but it does seem reasonably certain that when A agreed to pay a note on which a previous vendee was liable, he bound himself to answer for the debt of another, and should not have been answerable on such a promise unless made in writing. (Creel v. Bell, 2 J. J. Marshall, 311; Jennings v. Crider, 2 Bush, 325; Hodgkins v. Jackson, 1 Bush, 543.)

4th. A promise, though not in writing, to answer for the debt of another is enforced when it is made in consideration of the release of the other from all liability. Thus where A promised B to pay him the amount due on C's bond if B would deliver up the bond to C, held that the statute did not require such a promise to be in writing, as the bond was extinguished

by its delivery to C, the obligor, who was thereby released from all liability on it, and A, therefore, could not be said to be liable for another's debt since no other than himself was any longer bound. (Armstrong v. Flora, 3 Monroe, 44; Day v. Cloe, 4 Bush, 564; Haydon v. Christopher, 1 J. J. Marshall, 383.) 5th. Where one promises another to pay for goods which the latter is to sell and deliver to a third party, and the goods are charged to the party promising and not to the third party, the former must pay, though his promise was verbal only. As where M, having ordered 80 kegs of beer of O, who having refused to deliver it on M's credit, and A thereupon agreed to pay for it, and it was charged to him and delivered, the court held A liable on his verbal promise, though it appeared that O had demanded payment of M and had taken out an attachment against him. If the goods had been regarded as sold on A's credit alone and no claim made against M, there might have been ground for holding A on his promise, but M being liable also, the case is a palpable evasion or disregard of the statute. (Leisman v. Otto, 1 Bush, 227; Stapp v. Anderson, 1 Mar., 539; Porter v. Langhorn, 2 Bibb, 63.)

These numerous exceptions to the operation of the statute show either that it is not drawn in apt words, its terms embracing cases not intended to be affected by it, in which case it should be redrawn; or that the courts have found from experience that justice is not so well promoted by adhering to a rigid rule requiring written evidence of all promises to answer for another's debt, as by enforcing the promise whenever it appears from all the evidence in the case actually to have been made-if this be so the statute should be repealed.

COURT OF APPEALS OF KENTUCKY.

WALKER, &c. v. SMITH, &c.

(Filed January 20, 1885.)

1. Witness-Fraudulent deed-Vendor-Vendor is a competent witness for either party in an action by the creditor against the vendee to set aside a conveyance as fraudulent.

2. Contradicting witness-Where a witness, failing to testify in favor of the party calling him (without testifying to that party's prejudice), is asked whether he did or did not make certain statements to other persons, and on his answering that he did not, those persons can not be called to contradict him.

3. Fraudulent conveyance-Proof of fraud-Fraud is not to be lightly inferred. This deed is upheld, four unimpeached witnesses proving that the vendee paid an adequate consideration for the land as against a mere suspicion of fraud on the other side.

Appeal from Henderson Circuit Court.

Opinion of the court by Chief Justice Hines.

In 1870 Hicks made a deed to Norment for a tract of land and certain personal property for the recited consideration of $8,000. Subsequent to the conveyance appellees obtained a judgment against Hicks, had execution issued, levied upon this land and had it sold under the levy, appellees being the purchasers. Appellees, having no deed from the sheriff, brought suit in equity against Hicks and Norment (Hicks being in possession as the tenant of Norment) to recover possession of the land, to have their title quieted, and the deed from Hicks to Norment canceled, alleging that the conveyance was void because without consideration, and that it was made to cheat, hinder and delay the creditors of Hicks.

The court below adjudged that appellees were the owners of the land by their execution purchase, and directed the deed. from Hicks to Norment to be canceled.

The case is anomalous in that it presents no ground of equitable jurisdiction. It is well established in this State that a court of equity will not entertain jurisdiction to set aside a conveyance alleged to be fraudulent and subject the land to the satisfaction of a legal demand unless there is an allegation of judgment at law, an execution and return to nulla bona, or by attachment under some of the grounds stated in the Code. It is also well understood that in order to give jurisdiction to a court of equity to quiet title the complainant must allege in himself both possession and the legal title. Notwithstanding this the case proceeded, without objection by demurrer or otherwise to the jurisdiction, to a final termination. Under

this state of fact, as we have held in the case of Barton v. Barton, 80 Ky., 213; 3 Ky. Law Rep., 746, it is now too late to raise the question of jurisdiction. In that case this court said: "This is unlike a case where the court has no jurisdiction of the subject-matter, for in such case no consent can give jurisdietion; but here the court had jurisdiction to adjudge whether a conveyance or transfer of property was fraudulent, provided certain steps had been taken, and a failure to raise the question as to whether such steps had been taken is akin to submission of the person to the jurisdiction, where there has been no service of process, which may, in all cases, be done when the subject-matter may otherwise be inquired of by the court."

Appellant's objection to the reading of the certified copies of the judgment, execution and return, which, although not filed with the original petition, were filed before the pleadings were completed, is not well taken. In such case a denial of sufficient knowledge or information to form a belief will not present an issue. The attack must be made directly upon the certified record (12 Bush, 292, 336 and 598). It is prima facie evidence of the facts it is invoked to establish.

The objection of counsel to the introduction of certain other evidence is well taken. Appellees called Hicks, the vendor, as a witness, and, among other things, asked him if he had not stated to various persons, naming them, that the land trade between himself and Norment was a sham-if he did not say that the money which was pretended to have passed from Norment to himself in payment for the land was Confederate money. To all of these inquiries the witness stated that he made no such representations and had no such conversations as inquired of. Appellees then introduced, over the objection. of appellant, the several persons in reference to whom Hicks had been inquired of, and they severally stated that Hicks had stated to them, not in the presence of Norment, that the pretended trade was a sham. This evidence was clearly incompetent.