injured party, in addition to his action for specific performance, where that is possible, would be entitled to recover on a quantum meruit for the reasonable worth of his services: l'atterson v. Patterson, 13 Johns., 379; Hudson 7. Hudson, 13 S. E., 583 (Ga.). Indeed, this form of action would seem to be the most favored, as the courts will require very clear proof of a contract to give a distributive share of the estate, and in Pennsylvania would almost seem to doubt the right to recover it at all: Graham v. Graham, 34 Pa. St., 475; Pollock. Ray, 85 Pa. St., 428; Wall's App., 111 Pa. St., 460; Thompson. Stevens, 71 Pa. St., 161. If the will be made in accordance with the agreement, there can be nothing more required: In re Brookman's Trust, L. R.. 5 Ch. App., 183. So where a son remained with his father, under the expectation that he would be compensated by will, but leaving the amount discretionary with the father, it was held in analogy to ordinary contracts of hiring that he must be satisfied with any provision which may be made, whether it be what was expected or not: Lee's App., 53 Conn., 363: Eaton v. Benton, 2 Hill, 578. Owing to the peculiar wording of our Statute of Frauds, although the laud itself cannot be recovered upon a parole contract, there is nothing to prevent an action of damages for the breach. The only question was as to the measure of damages. In the early cases where the contract was oral to give land by will in payment for services, the court distinguished between a contract for the sale of land, and a contract to compensate for services in land, and marle the measure of damages in the litter case the value of the land at the time it should have been given, or at the death of the promissor: Bash v. Bash, 9 l'a. St., 263; Jack v. McKee, 9 Pa. St., 235; Burlingame . Burlingame, 7 Cowen, 92. But it was soon seen that this was in effect allowing a recovery of land upon a parole contract. This was shown in the dissenting opinion of Justice WooDWARD, in Melaun's Ad. ?'. Amnon, 1 Grant, 123, and when four years later Hertzog :. Hertzog, 34 Pa., 475, was argued, the personnel of the court having much changed, the old rule was abandoned, and the new one of Justice WOODWARD adopted. It is expressed thus: "A man who con. tracts for land, and pays the price, but loses it without fraud of the vendor, can at most only recover back his money, or the value of his services rendered, if this is the form in which the consideration was paid." The same change has gone on in the other States, so that now the value of the land has no place in fixing the damages, and an action only lies for a recovery of the consideration paid: Wallace v. Long, 105 Ind., 522; Reed on Statute of Frauds, 11, 728. C. Wilfred Conard. DEPARTMENT OF PRACTICE, PLEADING AND EVIDENCE. THOMPSON T. PEOPLE.' SUPREME COURT OF ILLINOIS. EDITOR-IN-CHIEF. (The nature of the subject of this annotation makes it improper that Judge DALLAS' name should be connected with it. The general editors are alone responsible.) ARDEMUS STEWART. Assisted by HENRY N. SMALTZ, Trial-Absence of Judge. JOHN J. MCCARTHY. It is reversible error for the judge, during the argument of the case before the jury, to go out of the court-room to a private room where he cannot hear the argument nor pass on objections made by the prisoner's counsel to the statements of the State's attorney. STATEMENT OF FACTS. John K. Thompson was indicted for assault with intent to kill, and was convicted. During the argument of the case before the jury, the trial judge left the courtroom and remained out of the court-room during the entire closing argument of the State's attorney. The judge had retired for the purpose of preparing his instructions to the jury, but he could not, and the record shows, did not, hear the argument to the jury. Counsel for the defendant repeatedly objected to the remarks of the State's attorney, but as the judge was absent from the court-room and there was no presiding judge present to pass upon the questions raised, or attempted to be raised, they were never decided. Upon these facts CRAIG, J., said: "The argument before the jury is a part of the trial of a cause as well as the introduction of evidence to prove the innocence or guilt of a defendant, or any other fact at issue in the trial. If the 132 N. E. Rep., 968 (1893). presiding judge may leave a court-room and engage in other business during the argument before the jury, he may upon the same ground leave while the evidence is being introduced during the progress of the trial, at any any other stage of the proceeding. . Under the law the defendant, who was on trial for a serious crimeone which deprived him of his liberty-had the right to the presence of the presiding judge during the argument of the case before the jury, and the absence of the judge was, in our opinion, an error of sufficient magnitude to reverse the judgment." MISCONDUCT Of a Judge as Ground for NEW TRIAL. The purity of the judiciary is the perpetuation of order and equality. When the bench becomes the object of criticism and contempt, the death warrant will be read to an institution which the civilized world recognizes to-day with awe and admiration. To the honor and credit of the judiciary, be it said that its decorum has been, as a rule, worthy of its praise; but instances of misconduct, legal, if not wilful, may be noted which the law recognizes as culpable and affording sufficient ground for granting a new trial. Absence of the Judge during Trial. The record in Meredith v. People, 84 Ill., 479. homicide,. shows that the judge of the Circuit Court before whom the cause was tried, during the argument before the jury was absent for nearly two days from the court-room and employed in the trial of other causes in an adjoining room, and his place upon the bench was occupied successively by two members of the bar. Justice Scort in setting aside the verdict said: "It is not material whether the judge of the Circuit Court was absent from the court-room during the trial of the cause by consent of counsel for the Private Communications between Judge and Jury.—It is a well established and salutary rule, and one very essential to the proper and effectual administration of justice, that the instructions of the judge to the jury should be openly and publicly imparted. The right of a suitor to have the trial of his cause conducted openly, with the opportunity to be present and to except to and review any unwarranted instruction or procedure, is a substantial one, and if any infrac tion of it occurs the burden rests upon the party maintaining the regularity of the proceedings to show that the communication or act or question could not have tended to the injury of the defeated party. If it appears affirmatively and beyond dispute that the instructions, instead of being prejudicial to the party complaining were really favorable, to him and could not have worked any injustice, or in any way have affected the result, or if the irregularity has been cured by the waiver (see Alexander ". Gardiner, 14 R. I., 15) or assent of the party alleging it, it is not a sufficient reason for ordering a new trial; but it may be stated generally that the party moving for a reversal is not required to show affirmatively that the communication tended to his hurt, the principle underlying the rule being that such communications are so dangerous and impolitic that it should be presumed conclusively that harm was done. The source of the danger lies in the secrecy attending the act.. Graham and Waterman on New Trials, Vol. II, p. 360, say: "The practice of the courts addressing private notes to the jury cannot be suffi ciently condemned." In Watertown Bank v. Mix, 51 N. Y., 559, the judge answered somewhat vaguely a written question relating to the evidence sent to him by the jury, by writing his answer beneath and returning it, but without informing counsel. JOHNSON, C., said: "It is, in my opinion, better and safer to adhere to the rule as affirmed by the adjudged cases and by what I understand to be the settled usage in this State, that there ought to be no communication between the judge and jury after they have gone from the bar to consider of their verdict, in relation to the oral evidence or his instructions to them, unless it take place openly in court or with the express consent of the parties." In Sargent v. Roberts, 1 Pick., 337, the Court said: "We are all of the opinion, after considering the question maturely, that no communication whatever ought to take place between the judge and the jury after the cause has been committed to them by the charge of the Court unless in open court, and where practicable in the presence of the counsel in the case." Wiggins v. Downer, 67 How. Pr., N. Y., 65, a leading case, reviews the authorities. Here the jury returned to open court at the close of the evening session, when neither parties nor counsel were present, and requested the Court to repeat certain propositions, which was granted. The attendance of counsel was impossible. Verdict sustained. See also Goldsmith v. Solomons, 2 Groble, S. C., 296; Rogers v. Moulthrop, 13 Wend., N. Y., 274. A distinction has been drawn between a written communication to the jury involving law and one involving fact. In Thayer v. Van Vleet, 5 John., N. Y. 111, a justice's court jury while deliberating sent for the justice, who entered their room and answered a question of law: Held, no such misconduct as commended a new trial. See also Allen v. Aldrich, 29 N. H., 63; School Dist. v. Bragdon, 23 N. H., 517. And the judge may give written instructions to the jury after they have retired, at their request, upon questions of law, even in the absence of counsel: Shapely v. White, 6 N. H., 172; Basset v. But Salisbury Co., 28 N. H., 438. in Plunkett v. Appleton, 51 How. Pr., N. Y. 469, a verdict was set aside because the judge, without the knowledge of counsel, sent written communications to the jury answering questions of law addressed to him by the jury. A reversal was allowed in Bunn v. Croul, 10 Johns., N. Y., 239, where the question was one of fact and not a matter of law. See also Mahoney v. Decker, 18 Hun., N. Y., 365. In Neil v. Abel, 24 Wend., N. Y., 185, the judge was reversed because he permitted the jury, without the consent of the parties, to use his minutes sent for by them. Similiter, State v. iexander, 66 M>., 148. In Shapely v. White, PARKER, J., said: "The principle to be deduced from these cases seems to be a sound one. If the jury, after an adjournment, put a questicu respecting the facts of the case to the court, it will be irregular to state the evidence relating to it; but if they desire instruction upon a mere question of law, that may be answered. It should undoubtedly be answered in such a way that the parties may have an opportunity to have it corrected if there is any error in the answer, and in this way all the rights of both parties are secured as effectually as if the answer was given in open court." In Taylor v. Betsford, 13 Johns., N. Y., 487, the justice went into the jury room and deliberated with them privately and apart from the parties and without their consent. Judgment reversed. See also Benson v. Clark, 1 Con. (N. Y.), 258. The Court, in Hobery v. State, 3 Minn., 262, said: "A judge has no more right to communicate with a jury after it has retired than any other rson, and we must look upon his visit in this case in the same light that we would view the entry of any third person into the jury room while the jury was in consul. tation." The Court, in Wiggins v. Downer, 67 How. Pr., N. Y., 65, said: "From these cases and others of like character that might be cited, it is clear that a judge should not privately communicate with the jury, either by entering the room where they are deliberating or by means of written communi. cations. The principle upon which the rule rests is that such communications are so dangerous and impolitic that they will be conclusively presumed to have influenced the jury improperly. The source of the danger is the secret nature of communication." But see Thayer v. Van Vleet, 5 Johns., N. Y., III. Intoxication of the Judge.-Such culpable decorum is undoubtedly ground for a new trial. Says the court, in Repath. Walker, 13 Col., 109: "It would be better to submit questions in dispute to the arbitration of chance than to the decision of a tribunal which is not thoroughly upright and scrupu. lously fair as between litigants; and can it be said that an upright judge, a scrupulously fair man, one who appreciates the dignity of his office, can impartially determine the interests of litigants and fairly administer the law when in a state of intoxication. Such conduct on the part of a judge is not only reprehensible, but is indeed criminal." Judicial Recognition of Scandal. -In Rickabus . Gott, 51 Mich., 227, the trial judge permitted to be admitted needless scandal and gratuitous attacks on the character of a party. Upon reversal the |