the surety." 10 But no contract for an extension of time which will discharge the surety can be implied from the voluntary payment by the principal of interest in advance at the time of the payment of interest then overdue, and as a sort of compensation for failure to pay the overdue interest at the proper time, no promise of indulgence being expressly given or contracted for. See the language of the court in Gard v. Neff12 in passing on the question whether there was error in charging that "the payment of interest in advance is not of itself conclusive evidence of a contract to extend the time of payment for the time for which interest may have been paid." It is said in Mariners' Bank v. Abbott13 that "the mere receipt of interest for a stipulated time from the principal by the creditor, after the note has become payable, it has been decided in this State, is not sufficient evidence of an agreement to give further credit." But the case is one in which it did not appear on the face of the note that there were sureties, and the evidence did not show whether there was knowledge of that fact. The indorsement upon a note of the words "received" and "renewed," with the dates and nothing more, may fairly be considered as meaning received the interest for a renewal, and "the payment of interest in advance, though it has been held by this court not to be of itself sufficient evidence of an agreement to give further credit, is undoubtedly a good consideration for such an agreement."'14 And extension of time of payment, evidenced by payment of interest in advance and declarations of creditor to principal debtor that he would wait that long, there being no written agreement, does not discharge the surety, as such payment of interest did not prevent the creditor from suing at any time, it being appparent from the evidence that the creditor had no intention of tying his hands. Payments of interest having been made in advance from time to time and indorsed on the note, a copy of which is included in a new contract by which the surety for a valuable consideration

15

10 First Nat. Bank of Springfield v. Leavitt, 65 Mo. 562. See also Schnitzler v. Fourth Nat. Bank, 1 Kan. App. 674.

11 Harnsbarger v. Kinney, 13 Gratt. 511.

12 39 Ohio St. 610.

13 28 Me. 280.

14 Lime Rock Bank v. Mallett, 34 Me. 547, 42 Me. 349. 15 Hosea V. Hawley, 57 Mo. 357.

agrees to be holden for an extended period, he is not discharged by a similar reception of interest in advance during such contract period, as it is to be inferred that there was knowledge respecting the previous payments of interest, and no objection to the similar reception thereof during the time for which the signers agreed to be holden.16

There are many other cases in which it has been held that payment of interest in advance in consideration of which time of payment is extended will discharge the surety.17 A pledgor of property whose relation to the pledgee is that of surety for her husband, is discharged from liability as to certain of the notes secured by the pledge by extensions thereof granted in consideration of the payment of interest in advance, where the facts do not show that she intended at the time of the bailment that the property should stand as continuing security."a And in Wright v. Bartlett, 18 it is held that extension of the time of payment granted by the holder to the principal debtor in consideration of the payment of interest in advance without the knowledge of the surety, will discharge the surety even though the principal debtor retain the right to pay the debt before the termination of the extended period. In Dunham v. Downer, 19 which was a bill in chancery to prevent the enforcement of the judgment in the case of Marshall v. Aiken,20 the sureties were granted an injunction. But payment in advance of interest on a forged renewal of a note is not a valid consideration for extension thereby given, is not binding as between the holder and the principal debtor, and, therefore, does not discharge the surety on the

16 New Hampshire Sav. Bank v. Gill, 16 N. H. 578. See also New Hampshire Sav. Bank v. Colcord, 15 N. H. 119.

17 Kennedy v. Evans, 31 Ill. 258; Peterson v. Stege, 67 Ill. App. 147; Schrieber v. Traudt (Ind.), 49 N. E. Rep. 605; Kaler v. Hise, 79 Ind. 301; Rose v. Williams, 5 Kan. 483; Hubbard v. Ogden, 22 Kan. 363; Schnitzler v. Fourth Nat. Bank, 1 Kan. App. 674; Christner v. Brown, 16 Iowa, 139; Dubuisson v. Folkes, 30 Miss. 432; St. Joseph F. & M. Ins. Co. v. Hauck, 71 Mo. 465; Merchants' Ins. Co. v. Hauck, 83 Mo. 21; Stillwell V. Aaron, 69 Mo. 539; Crafton Bank v. Woodward, 5 N. H. 99; New Hampshire Sav. Bank v. Ela, 11 N. H. 35; Crayson's Appeal, 108 Pa. 581; People's Bank v Pearson, 30 Vt. 711; Binnian v. Jennings, 14 Wash. 677; Glenn v. Morgan, 23 W. Va. 467.

17a First Nat. Bank v. Goodman (Neb.), 77 N. W. Rep. 756, reversing 75 N. W. Rep. 846.

18 43 N. H. 548.

19 31 Vt. 249.

20 25 Vt. 332.

If

original note.21 In Marks v. Bank of Missouri,22 holding the surety liable, it is said that "either the bank had or it had not the right by law to receive interest in advance. that right was conferred by law, then the payment of interest in advance was no consideration for the promise. If the bank had not the right to take interest in advance, then the payment of it, in consideration of forbearence to sue, was usurious. If the contract was usurious, then so far as the excess of lawful interest was concerned it was of no value to the bank, for it might have been recovered the next moment after it was paid. Such a contract did not prevent the bank from suing, as the money might have been returned or tendered, and the contract would have thereby been rescinded." Although interest in advance will answer as consideration for an extension of time, it is held that undated mere indorsements that the time of payment is extended to specified dates, and that the interest has been paid to specified dates, without anything to show whether the interest was paid in advance or not, do not show a binding agreement which will discharge the surety." Where there is a reservation of rights by the creditor there is, of course, no defense ;24 and likewise when interest is taken in advance for an extension of time in accordance with a known custom.2 But a surety on a note who does not assent to delay given in consideration of the payment of interest in advance is not liable for contribution to a co-surety who did assent and against whom judgment has been obtained.26

25

23

Usurious Interest.-In Vilas v. Jones,27 which was an application for leave to amend, it is said that while an executory promise to pay a usurious premium is not consideration, "the case is otherwise, however, where the usurious premium for the forbearance of the debt for the stipulated period is paid down.” The majority of the cases hold that extension of time in consideration of the prepayment of usurious interest will discharge the surety.28 21 Officer v. Marshall, 9 Tex. Civ. App. 428.

22 8 Mo. 316.

23 Crossman v. Wohlleben, 90 Ill. 537.

24 Oxford Bank v. Lewis, 8 Pick. 458; First Nat. Bank v. Lineberger, 83 N. Car. 454.

25 Shafford Bank v. Crosby, 8 Greenl. 191; Crosby v. Wyatt, 23 Me. 156; Blackstone Bank v. Hill, 10 Pick. 129.

26 Crosby v. Wyatt, 10 N. H. 318.

27 10 Paige, 76.

28 Hollingsworth v. Tomlinson, 108 N. Car. 245;

It is a matter of no consequence that the interest was computed at a usurious rate.29 A contract for usurious interest being valid by、 statute to the extent of the legal rate, extension of time given in consideration of usurious interest in advance without the knowledge of the sureties discharges them.30 But it is held in Farmers' & T. Bank v. Harrison,31 that payment of usurious interest in advance does not discharge the surety as it creates no legal obligation on the part of the holder to refrain from suit upon the note. As shown by the cases cited, the rule would seem to be that an extension of time granted by the creditor to the principal debtor in consideration of the payment of interest in advance, without the knowledge or consent of the surety or his ratification thereof, and without a reservation by the creditor of the right to sue, will discharge the surety. It has been seen that there is a great difference of opinion as to the implication of an agreement to extend from the fact of the payment of interest in advance. Under ordinary circumstances it is reasonable to assume that no man would deliberately pay money in advance of the time when it would regularly be due, unless there was some advantage to be gained by so doing. The parties must have intended something-there must have been some reason why the debtor was willing to pay and the creditor to receive interest not due. It seems that the natural inference would be that the parties intended to carry the indebtedness for the period for which such interest was paid in advance, in the absence of anything in the facts and circumstances of the case clearly tending to show the contrary. The weight of authority as shown above is that prepayment of usurious interest as consideration for an extension is binding, and discharges the surety without whose knowledge, consent, or ratification the extension was granted. What weight this rule should have it seems to me ought to depend

Knight v. Hawkins, 93 Ga. 709; Harbert v. Dumont, 3 Ind. 346; Cross v. Wood, 30 Ind. 78; White v. Whitney, 51 Ind. 124; Henningham v. Bedford, 1 B. Mon. 325; Armistead v. Ward (Va.), 2 P. & H. 504; Niblack v. Champeny, 10 S. Dak. 165; Austin v. Dorwin, 21 Vt. 38; Scott v. Scruggs, 60 Fed. Rep. 721; Scott v. Scruggs (Ala.), 11 South. Rep. 215; Warner v. Camp. bell, 26 Ill. 282. See also Danforth v. Semple, 73 Ill. 170. But see Marks v. Bank of Missouri, supra. 29 Grayson's Appeal, 108 Pa. 501.

30 Galvin v. Wiggam, 27 Ind. 489; Redman v. Deputy, 26 Ind. 338.

31 57 Mo. 503.

If

upon the law of each State as to usury. usury avoids the contract into which it enters, 'then it ought to be no consideration for the agreement, not binding on the creditor, and should not release the surety.32 In those States where usurious interest forfeits all the interest the effect would be the same. If usurious interest is void only as to the excess, the creditor would be bound and the surety discharged. There has been no attempt to include herein cases in which the payment for the extension is treated merely as a bonus or premium and not as interest, those in which there was only a promise to pay interest, or in which a note was given for the advance interest, except where such note was paid before the expiration of the extended time. JOHN E. WEllington.

HUGHES, J.: Appellant was indicted for bigamy. He demurred to the indictment, but in his argument does not insist upon the demurrer, which we do not discuss here. We think the indictment sufficient. He was tried, convicted, and sentenced for three years in the penitentiary. He appealed to this court. The evidence showed that when appellant married a second time his first wife was living, from whom he had not been divorced. The appellant sought to show in defense that at the time of his second marriage he believed in good faith that a divorce had been granted him from his first wife, and that he did not intend to violate the law; but the court refused to allow such proof. The defendant offered in evidence the following certificate: "State of Arkansas, County of Nevada. November 22, 1898. This is to certify that the circuit court of the aforesaid county granted the said Manney Russell a divorce from his wife, Ida Russell, and she has no interest in his property. Witness my hand. W. J. Munn, Circuit Clerk, per A. J. Fulton, Deputy." The court refused to allow this to be read to the jury, to which defendant excepted. The defendant offered to prove that he had paid one W. H. Booth to procure him a divorce from his first wife, Ida Russell, and that a fraud bad been practiced upon him, by which he was induced to believe,

and did believe, at the time of his second marriage, that he had been divorced from his first wife; all which the court refused to allow. It also refused to allow proof of defendant's good character, to all which he excepted. The court refused instructions in keeping with and based upon the theory in his (defendant's) offer of evidence to show that he believed, when he was married the second time, he had been divorced from his first wife; to which the defendant excepted. The court then read to the jury the statute on bigamy, and gave the following instructions: "All law, independent of evidence, is in favor of innocence, and the guilt of the accused must be fully proved, and in so doing the jury will take into consideration all of the facts in the case, and, arriving at your verdict, you must take into consideration the manner and demeanor of the witness on the stand as to the willingness or unwillingness in testifying one way or the other; and, after weighing his testimony, you may believe it in whole or in part, or you may disbelieve it in whole or in part, or you may give it just such weight as you think it entitled to. Upon the whole case, if you entertain a reasonable doubt as to the defendant's guilt, you should give him the benefit of the doubt, and acquit him; it being the burden of the State to prove beyond a reasonable doubt the guilt of the prisoner. If you believe that the defendant is guilty of bigamy, it will be your duty to say so: 'We, the jury, find the defendant guilty, and assess his punishment in the State penitentiary for a period of not less than three years or more than seven. If you have a reasonable doubt as to his guilt, you will find him not guilty. The burden is on the State to prove beyond a reasonable doubt all the material allegations in the indictment." To the ruling and judgment of the court in giving these instructions the defendant excepted.

Section 1480, Sand. & H. Dig. provides: "Every person having a wife or husband living, who shall marry any other person, whether married or single, except in the cases specified in the next section, shall be adjudged guilty of bigamy.

"Sec. 1481. The last preceding section shall not extend to the following persons or cases:

"(1) To any person, by reason of any former marriage, whose wife or husband by such marriage shall have been absent for five successive years, without being known to such person within that time, to be living.

"(2) To any person whose wife or husband has been absent from the United States for the space of five years.

of legal consent, and which has been annulled by a decree of a court of competent authority." Section 1482 provtdes that: "If any person shall knowingly marry the husband or wife of another, in any case in which said husband or wife would be punished according to the foregoing provisions, such person, on conviction, shall be subject to the same punishment as is prescribed in cases of bigamy."

We find that the rulings of the court were correct in refusing to allow proof that the defendant believed he had been divorced from his first wife at the time of his second marriage, as this was no defense.

The cases cited by the attorney-general in his brief sustain the ruling of the court upon this question. These cases are to the effect that: "The material facts of the crime of bigamy are the first and second marriages, and the fact that the first consort was alive and undivorced at the date of the void marriage. From such facts a bigamous intent may be inferred." Underh. Ev. § 398. That defendant had been told and believed that his first marriage was void, and acted on such belief, is no defense to a prosecution for bigamy. State v. Sherwood, 68 Vt. 414, 35 Atl. Rep. 352. An honest and reasonable belief in the death of a former wife is no defense to a prosecution for bigamy. Com. v. Hayden (Mass.), 40 N. E. Rep. 846. It is the marrying, by a person who has a husband or wife living, that constitutes the offense under our statute; and the offense is complete upon the second marriage. Scoggins v. State, 32 Ark. 205. Advice of counsel that there is no impediment to the second marriage is no defense to a prosecution for bigamy. People v. Weed, 29 Hun, 628; State v. Hughes, 58 Iowa, 165, 11 N. W. Rep. 706. To support an indictment for bigamy, it is sufficient to prove that defendant, being at the time lawfully married to one person, has married another. Com. v. Mash, 7 Metc. (Mass.) 472. In State v. Armington, 25 Minn. 29, the facts, briefly stated, were as follows: Armington was indicted in Minnesota for bigamy. He offered in evidence a certified copy of a decree of divorce between him and his first wife. This divorce was obtained in Utah. Counsel for the State objected to its admission, on the ground that at the time both parties were residents of Minnesota. The objection was sustained. Counsel for the defendant then offered to show by the paper and parol testimony of defendant that at the time of the second marriage he had this paper in his possession, and believed the decree to be effectual to make him a single man, and believed himself to be such, and that he would not have married again had he not believed such; and he had submitted the paper to a good attorney in this State, and had been advised that the paper was sufficient; and had married relying on such advice, and a copy of the decree, believing that he had a right to. All of this evidence was excluded, and on appeal to the supreme court that tribunal said: To disprove any criminal intent, the rec

ord was also offered in evidence, coupled with an offer to show that the defendant, acting under the advice of counsel, believed in the validity of such alleged divorce, and that he contracted his second marriage in this belief." And again, the court said: "If the pretended decree upon which he relies was in fact illegal and void, because made by a court having no jurisdiction, it affords him no protection against the consequences of a second marriage, whatever may have been his motives or his belief in respect to the validity of the decree." We think the evidence offered by the defendant affecting his intention and good faith in his second marriage was competent, not to show that he was not guilty, but because it might have affected the term of his imprisonment. But, as defendant was given the lightest punishment fixed by the statute, its refusal is not reversible error. Affirmed.

NOTE.-Recent Decisions on Indictment for and Evidence of Bigamy.-Under Civil Code, sec. 82, declaring that the marriage of one below the age of consent can only be annulled by that party, and that, if he or she freely cohabit with the other after attaining the age of consent, the marriage is valid, one who has married a girl below the age of consent cannot, after remarrying, plead that fact to the charge of bigamy. People v. Beevers (Cal.), 99 Cal. 286, 33 Pac. Rep. 844. A marriage by consent, followed by "a mutual assumption of marital rights, duties, or obligations," as described in Civil Code, sec. 55, is as sufficient a basis for a prosecution for bigamy as one by covenant, "followed by a solemnization." People v. Beevers (Cal.), 99 Cal. 286, 33 Pac. Rep. 844. An indictment for big. amy charged that Prichard did marry one Eliza Ann S, and her then and there had for his wife, known by the name of Eliza Ann Prichard, and that said Joseph Prichard afterwards feloniously and unlawfully did marry and take to wife one, Virginia M. Lewis, "the said Joseph Ferguson Prichard well knowing the said Eliza Ann Ferguson, his former wife, was then alive." Held, that the indictment did not sufficiently allege that the former wife was living at the time of the second marriage. Prichard v. People (Ill. Sup.), 36 N. E. Rep. 103. Under Code Crim. Proc. sec. 395, providing that the fact that a crime has been committed cannot be proved by the oral admission or confession of accused made out of court, an indictment for big.. amy will be set aside where the only evidence of a prior marriage consists of verbal statements made by defendant out of court. People v. Edwards (O. & T.), 25 N. Y. S. 480. An honest and reasonable belief in the death of a former wife or husband is not a defense to a prosecution for bigamy. Commonwealth v. Hayden (Mass.), 40 N. E. Rep. 486. An indictment for bigamy, which charges that the defendant did unlawfully and feloniously marry G, "the said L, said former wife, being then alive," sufficiently alleges that the first wife was alive at the time of the second marriage. Hiler v. People (Ill. Sup.), 41 N. E. Rep. 181. Evidence showing that defendant left his first wife a few days after the marriage, and that she was then alive, supplemented by the uncontradicted testimony of her father that defendant told him that he knew that the first wife was alive when he married the second, sufficiently shows that defendant knew she was alive at he time of the second marriage. Crane v. State, 94 Tenn. 86, 98, 23 S. W. Rep. 317. On a prosecution for bigamy, the record of defendant's second marriage,

and evidence of his cohabitation with the woman named therein as her husband from that time on, are admissible as tending to identify defendant with the person named in the marriage record. Johnson v. State, 60 Ark. 308, 30 S. W. Rep. 31. On a trial for big. amy, a letter purporting to be written and signed by defendant, and identified as his handwriting, and addressed to his mother-in-law, is competent against him. Commonwealth v. Hayden (Mass.), 40 N. E. Rep. 846. Under Mill. & V. Code, sec. 5651, providing that on trial for bigamy, in the absence of a certified copy of the first marriage license, a "public ac knowledgment" by the party charged shall be competent evidence of the first marriage, the acknowledgment need not be before a court or public tribunal, but may be made by a confession, or by conduct in the presence of others. Crane v. State, 94 Tenn. 86, 98, 23 S. W. Rep. 317. Proof of the first marriage by the testimony of witnesses of the ceremony, testimony by the aunt of the first wife tending to show cohabitation, and testimony by the first wife's father, showing that defendant had confessed to him that he knew she was alive when he married again, is, in the absence of evidence impeaching the regularity of the marriage or in any way explaining it, sufficient proof of such marriage and of its validity to support a conviction. Crane v. State, 94 Tenn. 86, 98, 28 S. W. Rep. 317. On a prosecution for bigamy, a petition for divorce filed by defendant against the alleged former spouse, alleging a marriage between them, is admissible to prove the former marriage. Adkisson v. State (Tex. Cr. App.), 30 S. W. Rep. 357. On a prosecution for bigamy, evidence of reputation is not sufficient to prove the former marriage. Adkisson v. State (Tex. Cr. App.), 30 S. W. Rep. 357. An indictment under Pub. St. ch. 244, sec. 1, providing that every person who shall be convicted of being married to another, or of cohabiting with another as husband and wife, having at the time a former husband or wife living, shall be imprisoned, etc., failing to allege the existence of a second marriage, is fatally defective. In re Watson (R. I.), 33 Atl. Rep. 873. Gen. St. ch. 22, sec. 127, provides that bigamy consists of having two wives or two husbands at the same time, knowing that the former husband or wife is still alive, and that nothing con. tained in the section shall extend to any person or per. sons whose husband and wife shall have been continually absent from such person or persons for five years prior to the second marriage, and he or she not knowing such husband or wife to be living within that time, or to any divorced person, or to any person where the former marriage has been declared void. Held, that it was no defense that defendant believed that his first marriage had been annulled by agreement with his wife. State v. Zichfeld, 46 Pac. Rep. 802, 34 L. R. A. 784. That defendant had been told and believed that his first marriage was void, and acted on such belief, is no defense on a prosecution for bigamy. State v. Sherwood, 68 Vt. 414, 35 Atl. Rep. 352. An indictment for bigamy, alleging that defendant, at a certain time and place, "unlawfully and feloniously did marry and take to wife one M, and to her, the said M, was then and there married, he, the said (defendant), then and there having a wife living, to-wit, J, against the peace," etc., sufficiently alleged that defendant had a lawful wife living at the time of the second marriage, and charged an offense. State v. Jenkins (Mo. Sup.), 41 S. W. Rep. 220. An indictment for bigamy need not negative the exception in Rev. St. 1889, sec. 3791, to the effect that the second marriage does not render defendant guilty, where the former spouse has been absent for seven

fully marry B, she, the said M, then and there having a husband then living," is insufficient, under Pen. Code 1895, art. 344, punishing any person who, having a former wife or husband living, shall marry another, as it fails to allege a former marriage, or that her "husband then living" was a "former husband." McAfee v. State (Tex. Cr. App.), 41 S. W. Rep. 627. An averment charging defendant with having two women, named, "as and for wives at one and the same time," is sufficient. State v. Sherwood, 68 Vt. 414, 35 Atl. Rep. 352. The State, in a prosecution for bigamy, is not bound to prove that the defendant has not been divorced from his first wife. Hanley v. State, 12 Ohio Cir. Ct. Rep. 581, 1 O. C. D. 488. The admission by defendant of his former marriage is competent evidence against him. State v. Melton, 120 N. Car. 591, 26 S. E. Rep. 933. The original marriage license signed by the justice solemnizing the same is admissible to prove the marriage, though the attesting witnesses are not present. State v. Melton (N. Car.), 120 N. Car. 591, 26 S. E. Rep. 933. To establish the former marriage of one on trial for bigamy, where it is not claimed that such former marriage was in conformity with the statute, the same circumstances are admissible in evidence as are admissible to establish the same kind of a marriage in a civil case; and such circumstances may not be sufficient to exclude all reasonable doubt. Swartz v. State, 13 Ohio Cir. Ct. Rep. 62, 7 Ohio Dec. 43. While a presumptive marriage, based on cohabitation and repute, cannot be established to defeat a subsequent marriage in fact, yet cohabitation and reputed marriage are facts receivable in proof of a marriage in fact, and a man charged with bigamy is entitled to show that the woman to whom he was first married had previously claimed, and was reputed, to be married to another man, with whom she lived and cohabited for a number of years, and who was still living at the time of her marriage to defendant, as evidence in support of his claim that his first marriage was void. State v. Sherwood (Vt.), 68 Vt. 414, 35 Atl. Rep. 352. Evi dence, on a prosecution for bigamy, that defendant lived with a woman as his wife, and held her out to the world as such; that children were born to them; and that, after he had deserted her, he admitted the marriage, but claimed to have obtained a divorce, was sufficient to show a former marriage, without evidence of a witness to the ceremony. State v. Jen. kins (Mo. Sup.), 41 S. W. Rep. 220. Where a witness testified that defendant had been married to his first wife for 39 years, and had admitted two years before the trial that he had another wife living, and the defendant had testified on the preliminary examination to such first marriage while he and his first wife were slaves, an instruction to find for defendant was properly refused. State v. Melton, 120 N. Car. 591, 26 S. E. Rep. 933. Under the last clause of Cr. Code 1896, sec. 4406, which in its entirety provides that "if any person having a former husband or wife living marries another, or continues to cohabit with such second husband or wife in this State, he or she must, on conviction, be imprisoned," etc., it is unnecessary, to constitute the crime of bigamy, that sexual intercourse should continue during the whole time the parties live together, but the crime is committed