Moses Hooper, for appellant.
David S. Ordway, for respondent.

ORTON, J. The facts are briefly as follows: George W. Lawe was the sole owner of an irregular tract of land lying on the northwest side of Fox river, south of the village of Kaukauna, and including the canal and lock subsequently constructed, containing about nine or ten acres. He occupied the tract for a dwelling, with a barn and outhouse, and an orchard and garden; and a fence inclosed nearly the whole tract, leaving out a road passing around the south side, and leading to and beyond a saw-mill. On the south side there was a wing-dam leading southeasterly from the river, which brought the water to said mill wear the middle of the tract on the south side. This mill was run by Lawe, to saw logs, mostly stored in said wingdam, and the lumber was piled on a mill-yard and along said road. The capacity of the mill was from 1.000 to 3,000 feet per day, or about 100,000 feet in one year, and it was operated only in the spring months when the water was high. This was the situation of the premises, December 12, 1851. The canal had not yet been excavated along the north side of the tract, but it had been projected, and Morgan L. Martin was the contractor, and had control of the work. At the above date Lawe deeded to Martin the one undivided half of said tract of land, by the following description: "The one undivided half of the following described piece or parcel of land, being that part of private claim number one lying on the easterly side of the canal, now owned and occupied by the said George W. Lawe and Catherine A. Lawe, excepting and reserving to the said parties of the first part all buildings and improvements, the saw-mill, and the improve

ments connected therewith." The consideration of this deed was $1, and a bond of Martin in the penal sum of $10,000, conditioned that he would construct and finish the canal across the land of Lawe according to his contract with the State, of suitable dimensions, not less than 100 feet in width, to use the surplus water, not required for navigation, for hydraulic purposes, and construct in the lower embankment of said canal a sufficient number of bulk-heads to make use of said surplus water for hydraulic purposes, and indemup in consequence of such surplus water being used nify Lawe against any claim that the State may set by Lawe, or by any one claiming under him. The defendants hold under this deed, and the plaintiff company holds under the reserved title of Lawe. Soon after this deed was made, the canal was completed heads, suitable for the use of the water from the canal across the north side of this whole tract, with bulkfor hydraulic purposes, adjacent to the remaining tract, which was laid off into lots 100 feet wide, extending to the canal on the north, and to the river on the south, and the controversy now is over the undivided half of these lots.

When the canal was completed these lots became wet and marshy, and the ground was unfit for residence, and in a short time all the buildings and improvements thereon were abandoned, and have decayed away, and finally before this action was com menced, the mill was also abandoned, and the mere frame-work only remains, and the road was long since thrown up. Leases have been made by the State or canal company to the holders of the respective titles under Lawe and Martin, of the hydraulic power avail able on this tract, and the bond of Martin was discharged. The defendants took possession of the whole tract, and the plaintiff company brought this action in ejectment against them, claiming to own, under and by virtue of the above exception or reservation in the Lawe deed, all the land necessary for the use of and appurtenant to said "buildings and improvements, and mill and improvements connected therewith," in addition to an undivided half of the remainder. The legal conclusion of the Circuit Court from the facts was, in brief, that the parties each owned an undivided half of the tract or lots, irrespective of said buildings and improvements, and the mill and improvements connected therewith, and that the exception or reservation in said deed included only such 'buildings, and improvements in the nature of buildings and of a personal property character, and not any land, or right in land, except the right to leave the buildings remaining on the land while the same lasted, or until sold or disposed of or removed by Lawe and wife and their vendees." only question in the case. This involves the The plaintiff company appeals from the judgment based upon this legal conclusion.

We think this conclusion was correct, (1) because such is the proper construction of the language of the exception or reservation; and (2) because treating tion of the premises and the circumstances attending such language as involving an ambiguity, the situathe execution of the deed show most conclusively that such was the intention of the parties to it. The general rule in all grants undoubtedly is, that when a stands, and adjacent thereto, and necessary for its use, mill or other building is granted, the soil on which it and actually used with it, passes to the grantee. Van Horn v. Richardson, 24 Wis. 245, and the numerous cases cited by the learned counsel of the appellant. But in a limited sense the soil would pass, at least for a time, necessary for the use and enjoyment of the buildings granted, even though such grant of the soil lutely granted. The buildings can be used so long as was not in fee, and nothing but the buildings abso

they exist on the land, and the right to use the land connected therewith is granted. Cuicunque aliquis quid concedit, concedere videtur et id sine quo res ipsa esse non potuit. Liford's case, 11 Rep. 53; Broom Leg. Max. 362. This maxim is sometimes construed to carry the land itself. But it is a matter of construction, and not an arbitrary rule. When the land is not mentioned in the grant, then it must pass, if at all, by force of the above maxim; and the question is a nice one, whether it will pass for the temporary use of the buildings or in fee. And where, by the terms of the grant, it is uncertain which is intended, and the point is left doubtful, it should be construed most favorably to the grantee. 3 Washb. Real Prop. 628. If there is a reservation in the deed, it being in effect a grant by the grantee, it should be construed most favorably to the original grantor by the same rule.

That which is called in this deed an exception, or reservation, is most clearly an exception, for it is a part of the thing included in the grant to be taken out of it, and the part so taken out is in esse. All the buildings named are a part of the freehold, and if reserved to the grantor, such reservation is an exception. The exception therefore if of doubtful con struction in respect to whether any part of the land in fee is excepted with the buildings, must by the same rule be construed in favor of the grantee, and against | the grantor, who has granted the whole, estate, and sets up the exception against it. An exception is none the less an exception because in the form and terms of a reservation. A reservation is something in futuro in respect to the use of the land, as an easement or the like. These are familiar principles. 3 Washb. Real Prop., § 640. There is another thing to be considered in construing the language of this exception. The grant makes the grantor and grantee tenants in common. Without the exception, the grantor would be entitled to one-half of the buildings and improvements, and the undivided use thereof. An exception operates only on one undivided half of the buildings in such a case, for the grantor retains that interest without an exception. In such a case, the only reason of such an exception would seem to be that the grantor, while enjoying in common with the grantee the joint estate in the lands, should have the exclusive use of the buildings while they were in existence.

This distinction seems to have been made in Howard v. Wadsworth, 3 Greenlf. 471, where there was a grant of one undivided half of a certain mill lot, dam, sawmill, and slip, with the privilege of flowing, etc. The exception was of "the grist-mill now on said falls, with the right of maintaining the same, and also the dwelling-house and sheds now on the premises." This case is especially in point. The court says in that case: "According to a well-known rule of law, as an exception operates by way of restriction upon the general language of a grant, if it is in ambiguous language, it must not be enlarged by construction, but rather be construed strictly. * * *The exception must not be extended beyond the plain language of it." The buildings in that case, as in this, having been destroyed, it was held that the right of the grantor therein, or in the soil on which they stood, was at an end.

An exception is not construed as a grant in any case, and much less in a case like this. where the parties become tenants in common by the deed, having an equal right of control over the whole premises, unless limited by such an exception. In this case the premises excepted, if any land is excepted, is not described, is uncertain, and cannot be made certain. The buildings are scattered some distance apart; a fence incloses most of the premises, including an orchard and

garden; and just where such fence run, and how much of the premises it inclosed is uncertain.

In another case, very much in point, of Sunborn v. oyt, 24 Me. 118, where the language was, "excepting and reserving all the buildings on said premises," it is given as a reason for restricting the exception to the buildings alone, "that the tract of land was conveyed by metes and bounds. It does not appear that there was at the time any lot, parcel of land, or curtilage designated by occupation in connection with the buildings."

Suppose it should turn out that the improvements (and a fence would seem to be an improvement in connection with a house, barn and outhouse, and an orchard and garden) covered the whole tract. Then of course the exception would defeat the grant by such a construction. How much land shall go with buildings and improvements, and mill and improvement? Where shall the lines and boundaries be placed? Who can tell? This uncertainty of description would defeat a grant, even. If the estate cannot be ascertained by the description of the grant, the deed fails altogether. 3 Washb. Real Prop. 629; Peck v. Mallams, 10 N. Y. 530; Deery v. Cray, 10 Wall. 270, This grant is made with hereditaments, appurtenances, reversions and remainders, rents, issues, and profits, right, title, and interest, claim or demand, of and to the above-bargained premises of the grantor, without any exception of any of the land.

There are authorities, perhaps, in cases of grants, that hold a different doctrine where the language may be similar; but they all differ from this case in the above particulars. But if in just such a case as this, authorities could be found to hold that the exception was of a part of the land, we should choose to follow the more reasonable rule in the above cases. (1) Then the language of the exception should be construed so that nothing but the buildings themselves were reserved. (2) If this exception is to be construed in the light of surrounding circumstances and the situation of the premises when the deed was made, then we think the intention of the parties very clear that the buildings and mill were excepted only for use during their existence, and that no land in fee was excepted with them. The deed is to be construed with reference to the actual, rightful state of the property at the time of its execution. Contemporanea exposito est optima et fortissima in lege. The canal was just about being excavated through the tract on the upper side, which when filled with water would cause all the tract to become wet, and unfit for occupancy, or for houses and barns, orchards and gardens. It was known that these were to be very temporary. The mill was a small one, and the power feeble, and which had been improvised by a rude wing-dam into the river, and the mill itself stood within the margin of the river. As soon as the canal was finished through the tract, soon after the deed was made, a series of water-powers of fifteen feet head were opened all along the northwest margin of the tract, which made the old mill of very little value, and superseded its availability. Morgan L. Martin had control of the hydraulic facilities of the canal, and the main consideration of the deed was that he should place bulk-heads along this tract throughout. If there was to be an exception of a considerable part of the tract to Lawe, then Martin would not have felt interested in making such bulk-heads along the entire tract, and binding himself to do so as the consideration of his purchase of an undivided half of the whole tract. These facts and circumstances most clearly indicate the intention of the parties that the exception should be limited to the buildings and mill aloue, and that they should be only temporarily used

by Lawe, and that upon the completion of the canal they would be abandoned as worthless.

We are satisfied that the Circuit Court placed the proper construction upon the deed.

The judgment of the Circuit Court is affirmed.

NEW YORK COURT OF APPEALS ABSTRACT,

CONTRACT OVERPAYMENT

FROM

DEDUCTION AMOUNT DUE ON OTHER CONTRACTS-EXTINGUISHMENT

OF DEMANDS.-(1) Where in an action against the State to recover money due on three contracts, it appeared that the plaintiffs had been overpaid on the first contract, held, that such overpayment was to be deducted from any amount found due to plaintiff on the other contracts. (2) Equity requires that one demand shall be extinguished by another by deducting the less from the greater, and the existence of the means of payment in the hands of the creditor and the lapse of time are conclusive evidence of the pre-existing fact of an acual discharge of the accruing debt, or are of themselves facts which require a court of equity to adjudge such application to have been made. Oct. 5, 1886. Belden v. State. Opinion by Danforth, J.

Deed-bounDARY-"ON WEST BY WOOD CREEK ". WHEN CONVEYS NO RIGHTS IN WATER.-We are of opinion that the plaintiff's grantor, Hancock, took title under his deed only to the strip of upland, thirty feet wide, lying between William street and Wood creek, and that he acquired no right in the land under the waters of the creek or in the water power. This we think is the true construction of the deed from the referee in the foreclosure suit to Hancock in view of the situation of the property and of the circumstances existing at the time of the conveyance and prior thereto. The description in the deed from the referee is similar to that contained in the deed of the Phoenix barn lot, dated in 1863, from John H. Boyd and wife to Gibbs, under whose lessee, Irwin, Hancock afterward held the premises in dispute until the sale under the foreclosure. The Phoenix barn lot consisted of a strip of land on the easterly side of Wood creek lying between William street and the bank of the creek, which was precipitous, being a natural wall of stone, the top of which was from twelve to fifteen feet above the surface of Wood creek when the water was high. This strip of land, called the barn lot, was about 185 feet long and 30 feet wide from William street to the edge of the bank. It had for many years prior to 1863 been used as a barn site, and was so used for several years thereafter. No attempt appears to have been made by any occupant of the barn lot prior to 1875, to make any use of Wood creek for power or otherwise. The water power of the creek had been used for a great number of years by a factory and grist mill north of and adjoining the barn lot, at or near the mouth of the creek. These establishments were supplied by means of a dam built across the creek at the north end of the barn lot, which dam had stood from 1818 to 1829 and from 1841 to 1864, when it was carried away. While the dam stood it set back the water opposite the barn lot so as to deprive it of any fall, and thus, as well as by the natural conformation of the land, the barn lot was entirely separated from the creek, and was in fact enjoyed and treated as a separate property. In 1863, and while the mill and factory were in operation and the dam was standing, using all the water power of the stream opposite the barn lot, Boyd and his wife conveyed to Gibbs the lot known as the Phoenix barn lot, by the following description: "Bounded south by James Greenough's lot, west by Wood creek, north by the axe helve shop lot, and east by William street; the lot thereby conveyed is about 185 feet on William

street, and about 30 feet wide from Wood creek to William street." Gibbs continued to use the lot exclusively for the purposes of a barn until 1868, when he leased the same to Irvin. Irvin sub-leased to Baldwin & Perry the southerly portion of the lot, and to James D. Hancock the northerly fifty-five feet thereof. The dam previously existing having been carried away in 1865, Hancock, in 1875, for the first time undertook to use the water power opposite the lot occupied by him. While Hancock was in operation as lessee, the whole property known as the mill lot was sold under judgment of foreclosure of the Williams mortgage which was a lien paramount to the title of Gibbs and his lesseesand at the foreclosure sale, which took place August 31, 1876, Hancock, the grantor of the plaintiff, became the purchaser of the lot in question, and it was conveyed to him by the referee, by deed dated September 5, 1876, wherein it was described as "bounded on the north by lot T, on the west by Wood creek, on the south by a lot marked 228, on the east by William street, the lot hereby conveyed being 55 feet in length along William street, from and off the north end of said barn lot, and about 30 feet in width from Wood creek to William street." At the same sale, at which Hancock was present, and before he purchased the lot. other parts of the mortgaged premises, together with "all the waters, and land under the water, of Wood creek," within the boundaries of the old mill lot, including the land under water and the waters in front of the barn lot, were sold by the referee to parties other than Hancock, but the referee in this action finds that Hancock, at the time of his purchase and of receiving his deed, did not know of this prior sale of the waters in question. In view of the location and physical condition of the property, its history, and the definite specification of the dimensions of the plat conveyed to Hancock, we think it quite clear that the intention was to convey only the strip of upland 30 feet wide lying between the edge of the creek bank and William street, and that the description was not intended to include any part of the waters of Wood creek or any water rights therein. Higenbotham v. Stoddard, 72 N. Y. 94. Oct. 5, 1886. Hall v. Whitehall Water Power Co. Opinion by Rapallo, J.

ELECTION OF REMEDIES-ACTION FOR PRICE-RESCISSION FOR FRAUD-PRACTICE.—(1) The mere bringing of an action for the price of goods sold, unless brought with knowledge of fraud in the sale, is not a binding election or waiver of the right to rescind; and to disclose error in the conclusion of a referee that the action for the price was so brought the record must show a request to find that he had such knowledge. (2) The burden of showing error in the conclusion of a referee is on appellant. (3) The court will look into the evidence to supply a fact not found for the purpose of affirming a judgment, but not to reverse it. A finding unsupported by any evidence is an error of law, but in order to raise the point in this court, it must have been excepted to. Oct. 5, 1886. Equitable Co-operative Foundry Co. v. Hersee. Opinion by Rapallo, J.

FRAUDULENT CONVEYANCE-ERROR IN RECEIVING AND EXCLUDING EVIDENCE. (1) Where in an action brought to set aside a conveyance upon the ground that it was made for the purpose of hindering, delay. ing and defrauding creditors, the evidence of fraudu lent intent is not conclusive or strongly preponderating upon that fact, the erroneous admission or exclu sion of evidence is error. (2) Defendant, after a con. veyance to G., who paid full value upon the transfer, gave a chattel mortgage to his wife conveying such property as he had remaining. This fact was proved upon the oral examination of defendant produced as

a witness for the plaintiff, the court admitting the evidence, although objected to on the grounds (1) that it was incompetent, and (2) that the mortgage should be produced. On cross-examination defendant offered to show what had been done with the mortgage after it had been executed, and the circumstances in which it was given, but upon objection the evidence was excluded. Held, error. (3) In a case where the evidence is not preponderating on one side or the other, evidence of the attendant circumstances should he heard and considered, as by excluding the same injustice may be done. Oct. 5, 1886. Nugent v. Jacobs. Opinion by Ruger, C. J.

OYSTERS-TAKING FROM BED-LAWS 1866, CHS. 404, 753-GRANT OF LAND UNDER WATER BY STATE-QUESTION FOR JURY.-By common law, oysters planted in a bed clearly marked out and defined in the tide waters of a bay or arm of the sea, which is a common fishery to all the inhabitants of the State where the bay or arm of the sea is situated, where there are no oysters growing spontaneously at the time, are the property of the person who plants them, and the taking them by another person is a trespass for which an action lies. Fleet v. Hegeman, 14 Wend. 42, Decker v. Fisher, 4 Barb. 592: Loundes v. Dickerson, 34 id. 589. This planting of oysters in tide waters, and the right of property in the person planting them, is not regarded as an exclusive appropriation of the right of fishery common to all the inhabitants of the State, but as a legitimate exercise of the common right, not inconsistent with its reasonable enjoyment by others. Cases supra. The right to plant oysters in the tide waters of bays and arms of the sea, upon the lands of the State adjacent to the county of Richmond, not being a natural oyster bed, is now recognized by the statute which prohibits any person to interfere with oysters so planted without the consent of the owner. Laws of 1886, chs. 404, 753. The space on which the plaintiff's oysters were planted had been used as an oyster bed for more than fifty years, and there can be no doubt that both by the common law and the statute the plaintiff was in the lawful use of the oyster bed on April 28, 1881, when the commissioners of the land office granted to Baltazer Kreischer, the owner of the adjacent upland, the land under water, embracing the oyster bed of the plaintiff. The defendants justify their act in depositing the material dredged from other premises upon the plaintiff's oyster bed, thereby covering and destroying the oysters thereon, under the grant of the State to Baltazer Kreischer. Unless the defendants are protected by this grant, there can, we think, be no doubt that their act in depositing this material in the waters of the bay is unlawful, and that upon familiar principles the plaintiff is entitled to recover damages for the special injury occasioned to him thereby. The grant contains the following material exception: "Excepting and reserving to all and every the said people the full and free right, liberty and privilege of entering upon and using all and every part of the above described premises in as ample a manner as they might have done had this power and authority not been given until the same shall have been actually appropriated and applied to the purposes of commerce by erecting a dock or docks thereon, or for the beneficial enjoyment of the same by the adjacent owner." It is clear from the words of the exception that the plaintiff's right to the continued use of the oyster bed, and his property in the oysters thereon, was not eo instanti terminated on the execution and delivery of the grant. It is unnecessary to inquire what the right of plaintiff would have been if the grant had been absolute and unqualifled. It is sufficient for the present purpose to notice that it did not confer any right to interfere with the

uses to which the land was then appropriated, or with the common rights of fishery and navigation, until the granted premises should be "actually appropriated and applied" by the grantee to the purposes mentioned in the grant. It was claimed on the trial in behalf of the defendants, that the filling in in June, 1881, over the plaintiff's oyster bed, was with a view to the construction of a dock for the beneficial enjoyment of the premises embraced in the grant, and was therefore a lawful act, constituting an actual appropriation of the premises within the exception. The plaintiff's counsel asked to have the question, whether under the evidence there had been an actual appropriation of the premises under the grant, submitted to the jury. The court refused the request, and thereupon directed a verdict for the defendants, to which the plaintiff's counsel excepted. We think the exception was well taken. We do not intend to intimate any opinion as to what conclusion should have been reached by the jury upon the question, whether this deposit was made with a view to the improvement of the land embraced in the grant. It seems quite clear that the primary object of the dredging was to deepen the water in front of other premises occupied by the defendants. One of the defendants testified that they deposited the material with a view to making a dock on the premises embraced in the grant. It appears however that nothing was done in execution of this purpose beyond depositing this loose material, which was left subject to the action of the winds and tides, and the purpose of building a dock, if originally entertained, was evidently abandoned. Under the circumstances it was, we think, for the jury to say whether the depositing of the material from the dredging over the plaintiff's oyster bed was with a bona fide view to the improvement of the premises, or was done simply as a convenient way of getting rid of the material, and without any intention of making an actual appropriation of the premises within the grant. Oct. 5, 1886. Post v. Kreischer. Opinion by Andrews, J.

TRUST-CONTRACT-TRUSTEE PERSONALLY INTERESTED. The law permits no one to act in the attitude of selling as owner and levying as trustee, and it does not alter the case that the transaction was just and fair. Plaintiff M., who was a director, president and holder of the first mortgage bonds of a railroad company, with others, on August 13, 1875, entered into an agreement with defendant M., who subsequently assigned the same to the defendant railroad company, it agreeing to carry out its provisions. This agreement, after reciting the fact of the insolvency of the railroad company of which plaintiff M. was director, etc., provided that plaintiff M should at once proceed to have the mortgage securing the bonds foreclosed, obtain a sale of all the property, etc., of said company, and that he should purchase the property on the sale or sales and convey the same to the defendant M., or to a railroad company which was then proposed to be organized. Defendant M. on his part agreed to deliver to plaintiffs the first mortgage bonds of the new company to an amount equalling fifty per cent of the principal and interest of the bonds held or represented by plaintiffs in the old company. On September 14, 1875, by an agreement between plaintiffs as individuals and the defendant railroad company, signed by plaintiff M. as president of the new company, the original contract was renewed and was attached thereto. In an action to enforce specific performance of the obligation of the defendant company under its contract of assumption, held, that said contract was void under the rule that all contracts made by a trustee or fiduciary in which he is personally interested is voidable at the election of the party he represents, and the fact

that M.'s associates were not themselves disabled from contracting with the corporation, made no difference in the application of the rule. Oct. 5, 1886. Munson v. Syracuse, Geneva & Corning R. Co. Opinion by Andrews, J.

WILL- DYING WITHOUT ISSUE"-CONTINGENT ESTATE OR FEE-Testator, by his will, disposed of his estate-real exclusively-as follows: "First, my debts and funeral charges to be paid first out of my estate; second, all my real estate, as now in my actual possession, being my homestead farm situate in the county of Albany, I devise to my son Cornelius, subject to the proviso hereinafter contained." *** After providing for a life support for his wife out of the estate, the will continued: "Ninth, the legacies above mentioned are to be paid to the legatees by my son Cornelius in consideration of my devising unto him the aforementioned real estate, to be paid to them respectively within two years after my death; tenth, in conclusion, my will is that if my son Cornelius dies without issue, that then the estate herein devised to him shall go to my grandchildren hereafter named, * ** share and share alike, and in case my son Cornelius should die before the provisions of this will become an act, the devisees last named shall perform and fulfill all the conditions required of my son Cornelius to the legatees named in my last will." Cornelius survived the testator, but died without issue. Held, that the words "if my son Cornelius dies without issue," in the tenth clause, standing alone, referred to his death in the life-time of the testator, which would give Cornelius an absolute fee; but taken in connection with the second clause thereof, and its context, they referred to his death without issue, either before or after the testator's, in which event the gift over to the grandchildren was to take effect. Oct. 5, 1886. Vanderzee v. Haswell. Opinion by Andrews, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

CORPORATION-INSURANCE COMPANY-STOCK AND

MUTUAL DEPARTMENTS-SURPLUS EARNINGS-RIGHTS OF STOCKHOLDERS.-The surplus earnings accumulated from the operations of the stock department of an insurance company run upon the stock and mutual principles-the business of the two departments being entirely distinct and conducted separately, the taxes of the guaranty capital of the stock department being paid by the company and charged to the stock department, and none of the earnings of the stock department being paid to the holders of mutual policiesupon the winding up of the affairs of the stock department belong to the stock department, and should be distributed among the shareholders of the fund of that department according to their several shares. Mass. Sup. Jud. Ct., Sept. 10, 1886. Traders & Mechanics' Ins. Co. v. Brown. Opinion by Gardner, J.

CRIMINAL LAW-AIDER AND ABETTOR-INSTRUCTIONS.-Where the indictment charges a person alone with the commission of a crime, he cannot be convicted as an aider and abettor; and it is error for the court to instruct the jury "that they must find the defendant guilty if they believed from the evidence, beyond a reasonable doubt, that being in convenient distance for the purpose, he aided and abetted in the commission of the crime. others Blackstone, in the second volume of his Commentaries, 34, says: "A principal in the first degree is he that is the actor or absolute perpetrator of the crime; and in the second degree, he who is present, aiding and abetting the fact to be done, which presence must not always

be an actual and immediate standing by, within sight or hearing of the fact, but there may be also a constructive presence, as when one commits a robbery or a murder, and another keeps watch or guard at some convenient distance." It is true that they are both principals. The one who is the absolute perpetrator is principal in the first degree; the other, who aids and abets, is principal in the second degree. To make a man principal in the second degree there must be a principal in the first degree to do the principal factto perpetrate the main fact. Failing in that, there can be no principal in the second degree. The principal in the first degree is the one who actually commits the criminal act. By this act he is guilty, without reference to the act of the principal in the second degree, It does not require the aid of his act to complete the guilt of the principal of the first degree, but the principal of the second degree cannot be guilty of crime unless the principal of the first degree actually perpetrates the act. By perpetrating it he is guilty,although the principal in the second degree fails to do his part; but if the principal in the first degree fails in his part, the principal in the second degree, although he has doue his, is not guilty. So one cannot be guilty of aiding and abetting the perpetration of a crime without first showing that the crime has been actually committed by another party. One cannot be aider and abettor of himself in the commission of a crime. Two or more persons must act. So one cannot be con. victed as aider and abettor of a criminal act without proving that some one else participated by actually perpetrating the crime. While it is well settled that two or more persons indicted as the actual perpetrators of a crime may be convicted as principals, although some of them were merely aiders and abettors (see Thompson v. Com., 1 Metc. 13; Young v. Com., 8 Bush, 366), yet the principle of these cases does not meet the question here. There the principal and the aiders and abettors were jointly indicted as principals. They were notified by the indictment that the Commonwealth would try to make a complete offense against all of them by proving the separate acts of each relat ing to the perpetration of the deed. These cases do not show that a person indicted as the perpetrator of a crime can be convicted upon proof that some one else, not charged or named in the indictment, was the perpetrator, and the person charged merely his aider and abettor by doing some act possibly out of sight or hearsay of the principal fact. We conclude therefore (1) that the Commonwealth may, if it chooses, indict both principal and aider and abettor jointly as principals, and secure a conviction against both without violating the rule of the Code, because they are then furnished with a statement of the facts constituting their crime; or (2) the aider and abettor may be indicted alone, but in that case he ought to be furnished with a statement of the acts constituting the crime. This can only be done by setting out in the indictment the acts of the principal actor, etc. By this course the Commonwealth cannot be wronged, and the defendant cannot be taken unawares or by surprise, because the Commonwealth informs him of a full statement of the facts of which he is charged. We have examined the authorities with reference to this matter extensively, and find but one expression in any of the works on criminal law that militates against the views here expressed. In Mr. Bishop's Criminal Proceedings (vol. 2, p. 3) he states that the aider and abettor may be indicted and tried without naming the principal in the indictment. He refers to but one case to support that view, to-wit, King v. Borthwick, 1 Doug. 207. That case does not treat of the question at all, but by inference it is an authority against the view taken by Mr. Bishop. Ky. Ct. App., Sept. 16, 1886. Mulligan v. Commonwealth. Opinion by Bennett, J.