barn had been paid for, and, as a matter of fact, did not comprise a part of the account sued on.

The rule of law is, that the debtor may direct, on paying money to his creditor, the appropriation of it to a particular account or item of indebtedness; but if he make or indicate no such appropriation, the creditor may apply the money as he pleases. When money is paid generally on an account without any appropriation, the rule is that it should be applied to the first items in the account: 2 Pars. Contracts, 629, 631, 811; Hill v. Robbins, 22 Mich., 475; Crompton v. Platt, 105 Mass., 255.

The proof upon the trial showed that the barn was sold to the defendant by the late firm of Sherrick & Lewis on the twenty-fourth of November, 1880, and charged up to him upon the books of the firm in the general running account for merchandise, at the price of one hundred dollars. On the first of December following, defendant's account, including the price of the barn, amounted to the sum of three hundred and fifteen dollars, for which several items a bill was then presented to the defendant by Mr. Sherrick of said firm. The defendant received the bill and said he would pay it as soon as he got round to it.

This witness testified that defendant paid this bill in full. That he paid two hundred dollars on the tenth of December, and one hundred and fifty-one dollars and sixty cents on the first of January following, which two sums amounted to more than the bill rendered December 1.

The witness testified further, that although about seven monthly bills were presented the defendant, from the time of the sale of the barn to the close of his account, but one bill contained the item of this sale.

These statements clearly show an application, by Sherrick & Lewis, of the moneys paid by the defendant subsequent to December 1, upon the account then due, which was legal and proper, it not appearing that any direction to appropriate the payments otherwise were given by the defendant, and it affirmatively appearing that the latter made no objection to the charge for the barn until after the assignment of Sherrick & Lewis to the plaintiffs, on September 1, 1881.

It does not avail the defendant to say, as he did in his testimony, that he did not look at the bill of December 1, presented him by Sherrick, and did not know that it contained the item of the barn. Willful ignorance is equivalent in law to actual knowledge. A man who abstains from inquiry when inquiry ought to be made, cannot be heard to say so, and to rely upon his ignorance: Kerr on Fraud and Mistake, 237-238.

Even if it were proper to litigate the subject of the sale of the barn in this action, the defendant has no available ground of error to complain of. His main defense is, that he supposed he was buying the lot upon which the barn stood, as well as the barn, and was ready to pay one hundred dollars therefor upon receiving a deed for

the property, but that he had since learned that Sherrick & Lewis. could not make title, as they did not own the lot.

Opposed to this is the testimony of Sherrick, that he told defendant at time of the sale that the Monier metallurgical works owned the lot. The credibility of these two witnesses upon this point, was submitted to the jury by the second instruction given by the court, and it is resolved against the defendant.

In short, the evidence shows that defendant bought the barn and paid for it; that another person, who was then occupying it was turned out, and that the possession thereof was delivered to the defendant, who put his mules into it, and occupied it as long as he desired. The effect of his defense to the present action is, to seek to recover back the sum paid therefor, for unless an offset of the one hundred dollars is allowed, he is indebted upon the account for groceries and supplies in the sum of five hundred and ten dollars and six cents, the sum sued for. In no view of the case can he attack the title of the vendors of the barn in this proceeding. The matter of the purchase and payment of the barn was voluntarily closed and settled by the parties before the assignment of Sherrick & Lewis to the plaintiffs, and as to the latter parties the matter was closed forever.

The judgment is affirmed.

DEWALT V. HARTZELL, ET AL.

Filed November 14, 1884.

STATUTE OF FRAUDS-PROMISE TO ANSWER FOR DEBT OF ANOTHER. -An agreement between the treasurer of a mining company and a bank, whereby the former promised to remit to the latter the amount of all drafts drawn by the manager of the mining company on, and paid by the bank, is not an agreement to answer for the debt of another and need not be in writing.

OVERRULING DEMURRER-TIME TO ANSWER.-During the term the court may limit the time in which the defendant may answer, after a demurrer to the complaint has been overruled, to two days.

CHANGE OF VENUE-PREJUDICE OF JUDGE AFFIDAVIT OF.-An affidavit for a change of venue on the ground of prejudice of the judge and of the inhabitants of the county, must state the facts showing such prejudice. A mere averment of prejudice is not enough.

APPEAL from the district court of Custer county. The opinion states the facts.

J. F. Frueauff, for the appellant.

STONE, J. The appellant, DeWalt, and the appellees, the two Hartzell brothers, were, together, owners of one-half of the capital stock of a certain mining company. The mine, operated by the company, was situate near Silver Cliff in Custer county. Appellant was the treasurer of the said mining company, and was engaged in the banking business at. Leadville. The appellees were bankers at Silver Cliff. An arrangement was made between appellant and appellee that for business convenience in paying the expenses of working the mine, the manager of the mining company should draw

orders upon appellant payable at Silver Cliff; that appellees should pay such order at their bank in Silver Cliff, and should then transmit the same to appellant at Leadville, who, as the treasurer of the said company, should remit the amounts of such orders to the appellees.

Suit was brought in the court below by the appellees to recover from appellant the sum of two thousand five hundred and sixty-three dollars and eighty-four cents, advanced and paid out under the arrangement above stated, for labor, tools and other expenses in working the mine. Appellant, in his answer, pleaded inter alia, the statute of frauds, for that the alleged agreement of appellant to repay as averred was to pay the debt of another, viz., the said mining company, and was not in writing, signed, etc. To this plea the replication denied that it was the debt of another.

The court refused to instruct the jury, as prayed by appellant, that if they believed that the indebtedness paid by appellees was the indebtedness of the mining company, and not that of appellant, and that the promise of appellant to pay the same was not in writing, they should find for said appellant, and the refusal to give such instruction is assigned for error.

There was no error in refusing this instruction. It was inapplicable to the case made by the evidence, and calculated to mislead the jury. The indebtedness shown was that of appellant as treasurer of the mining company, and as between him and appellees, who were acting as his agents in making the advances for him, it was the same as his individual indebtedness.

The agreement was between mutually interested parties. As treasurer, appellant was liable for the sums he had authorized the manager to draw upon him for and promised to pay. The advances by appellees were made at appellant's request and for his accommodation. Considering the relation of the parties to the mining company, and to each other, it cannot be said that the promise of appellant was to pay the debt of a third party. It amounted simply to an agreement for the transfer to appellees by appellant of certain funds in his hands in settlement of advances therefor by appellees who stood in the same relation to appellant that the manager did whom the appellant had authorized to draw upon him for said funds. In short, it was a promise to pay the liabilities of the promisor, and not such a case as can be brought within the statute of frauds, which was pleaded in bar of the agreement.

As there was no error in refusing the instruction in question, there was, for the same reason, no error in overruling the demurrer to the complaint.

Error is also assigned, because the court, in overruling the demurrer to the complaint, allowed but two days in which to file an

In support of this assignment, counsel for appellant rely upon section 74 of the code as amended by the law of 1879 (see laws 1879, p. 216), which it is insisted fixes ten days "as the general time

No. 50-3.

in which all steps in regard to demurrers, answers or applications are to be taken.' In answer to this, it is only necessary to say that counsel are mistaken; the provision of the statute cited refers only to demurrers and amended pleadings filed and allowed in vacation; while the same section declares that when such proceedings are had "during the term of court, the court shall fix the time by order, to expedite the trial."

Another assignment of error is predicated upon the refusal of the court to grant a change of venue on the petition therefor by the appellant.

We think the petition fails to set forth facts sufficiently, either in respect to the alleged prejudice of the judge, or of the inhabitants of the country to warrant us in interfering with the ruling of the court under the discretion vested therein by the statute touching applications of this character. Beyond the bare allegation of prejudice, sufficient facts should be set out by the petitioner from which the court may be able to judge of the probable truth or falsity of the averments, otherwise a change of the place of trial, with its involved expense and delay, might go, as a matter of course, upon the mere petition therefor, supported by an indefinite affidavit, as in this

case.

The drafts, or orders, of the manager drawn upon appellant and paid by appellees were received in evidence over the objection of appellant; and, against like objection, testimony was heard as to what was the arrangement or agreement between appellant and appellees under which the payments in question were made by appellees, and the ruling of the court in admitting such evidence is assigned for error.

This evidence was pertinent to the issue made by the pleadings; and, in accordance with our view sustaining the validity of the agreement, the evidence in question was competent.

There was no error in overruling the motion for new trial. Perceiving no error in the record, the judgment will be affirmed.

SUPREME COURT OF OREGON.

STATE v. DRAKE.

Filed November 13, 1884.

IRRELEVANT LANGUAGE ADDRESSED TO JURY -BILL OF EXCEPTIONS.-Objections taken to irrelevant language addressed to the jury by counsel will not be reviewed by the appellate court, unless the same are embodied in a bill of exceptions.

CO-DEFENDANT IN CRIMINAL PROSECUTION-EVIDENCE OF.-A defendant in a criminal case, both at the common law and under section 166, title 1, chapter 16, of the criminal code, is incompetent to testify for and on behalf of one jointly indicted with him, although the defendant offered as a witness is not on trial at the time.

NEW TRIAL EVIDENCE OF ACQUITTED CO-DEFENDANT-DISCRETION.-Whether a new trial will be granted on behalf of a defendant convicted in a criminal case, because a co-defendant tried at the same time and acquitted, or, upon severance, subsequently tried and acquitted, is a material witness for him, quaere. Conceding, however, that it would be a matter addressed to the sound judicial discretion of the court below, and in a proper case ought to be allowed, the record here does not show an abuse of such discretion.

APPEAL from the circuit court of Marion county. The opinion states the facts.

W. M. Kaiser and Tilmon Ford, for the appellant.

George E. Chamberlain, District Attorney, W. H. Holmes and W. G. Piper, for the respondent.

LORD, J. The defendant was jointly indicted with Mary E. Swartz at the June term, 1884, of the circuit court for Marion county, for the crime of murder. A separate trial having been granted, the cause came on for trial at the term specified, and resulted in a verdict of guilty as charged in the indictment. A motion for a new trial was interposed, supported by the affidavit of the defendant, which, after argument, was overruled, and the defendant, by his counsel, duly excepted thereto. From the order of the court overruling this motion, the defendant appeals to this court and assigus the following as grounds of error.

1st. The court erred in allowing the attorney for the prosecution, against objection, to argue that because defendant was in the habit of carrying a pistol, showed that he was a bad man, and that this habit of carrying a pistol was a circumstance indicating guilt.

2nd. The court erred in allowing the counsel for the prosecution, in his closing argument, to refer to what the newspapers said about crime, against the objections of counsel.

3rd. The court erred in allowing the attorney for the prosecution, against the objection of my counsel, as will fully appear by the affidavit hereto attached, and made a part thereof-to refer to and comment upon the Cincinnati riot, which he claimed was caused by the jury acquitting the defendant, then on trial.

4th. The court erred in allowing the attorney for the prosecution in his closing argument, against objection of my counsel to intimate and argue that there would be a riot here, if the jury did not return a verdict of guilty against me.

5th. Because the defendant can, if granted a new trial, prove by Mary E. Swarts, the co-defendant, who has, since defendant's trial, been acquitted, the facts as stated in the affidavit hereto attached, which said facts are material to defendant's defense; and defendant could not produce the said Mary E. Swarts as a witness in his behalf at said term, for the reason that she was then jointly indicted with this defendant.

As the first four assignments of error, so far as this case is concerned, involve a decision of the same question; they will be considered together. And, substantially, that question is, whether the objections, or matters assigned as error, are presented by this record so as this court can take judicial cognizance of them. Evidently, in the preparation of their brief, counsel for the defendant treated the record as containing a bill of exceptions; but, in the oral argument, it was claimed that the ruling of the court upon the affidavit and motion, which were in writing, and upon file in the court, being upon the record, it brought the matter within the pur