The business was a losing one and there were no profits to be divided. The old goods were sold by the firm, and with the proceeds new goods were bought in the usual course of business, and certain goods were purchased upon the credit of the firm; and at the time of the commencement of this action said firm was indebted therefor to divers persons to the aggregate amount of several thousand dollars.

The defendants did not withdraw Hooley's interest as soon as practicable after his death from said firm, and in fact never invested any part of the estate of which they were trustees, except the sum of $10,000, which they subsequently converted to their

own use.

This action was commenced to remove the said trustees, and to have the amount due the estate of Hooley declared to be a lien upon all the assets of the defendants.

Judgment was rendered for the plaintiffs, and from this judgment this appeal was taken.

Mr. Adam C. Ellis, of counsel for defendant and appellant.

Mr. Stephen H. Olin, of counsel for plaintiff and respondent.

VAN BRUNT, J. In the foregoing statement of the case I have not attempted to state all the facts of the case, but only such as serve to present the single question which I propose to very briefly consider, which is this: Has the estate of Hooley a lien upon all the assets of the firm of Gieve & Co. to the extent of the value of the property belonging to the estate which was misappropriated and put into that firm by Gieve and Cutts, to the exclusion of the creditors of said last-named firm?

It is very evident that it is no answer to the assertion of such a lien that, as far as Gieve and Cutts are concerned, the property of the trust estate has become so blended, with their own that it cannot be traced, because such blending has arisen from their own fraudulent acts; and if the trust property has been mingled with his own by the trustee, the court will take the whole in order to indemnify the trust estate.

The question has never, as far as I have been able to discover, been considered by the courts of this State, but it has arisen in England, where the assignees of a bankrupt have claimed property used in trade, upon which a lien was claimed by the representatives of a deceased partner.

In the case of West v. Skip, 1 Ves. Sr. 239, Lord Hardwicke held that the representatives of a deceased partner had a specific lien upon the assets, although the survivor afterward dies or becomes bankrupt, and said that "Skip, therefore, is entitled to the same specific lien against the assignees as against Harwood, and that even as to the new stock; for in all those cases of a lien on a partnership, it is not considered as appropriated to the stock brought in, but to every thing coming in during the continuance or after the determination of the partnership."

"As in Bucknall v. Roiston, Pre. Chan. 286, where a lien was held to be on those goods which were the produce of the original goods; so in Brown v. Heathcote, Mich. T. 1749, held that it continued on what was the produce by way of barter and sale, and that holds much more strongly in the case of a partnership trade which cannot otherwise be continued."

Lord Eldon followed the same rule in Ex parte Rowlandson, 2 Ves. & Beam. 172. Whether the lien of an outgoing partner would prevail against creditors, he said, would depend simply on whether the outgoing partner left the property in the order and disposition of the bankrupt, and he held that the consent of the outgoing partner must clearly appear to have been given before he would be robbed of his lien.

In Viner v. Cadell, 3 Esp. 90, the wife of a bankrupt, as administratrix of her father, had become entitled to his effects, the stock and fixtures of a bakery. She and an infant brother and sister were entitled to the distributive shares. The husband of the administratrix, with her consent, continued the business for their benefit until he failed. Lord Eldon held that, nevertheless, only her own distributive share, and that became lawfully her husband's property, would go to his assignee in bankruptcy.

In the case of Stocken v. Dawson, 9 Beav: 239, the principle contended for was distinctly held. That was a case in which a surviving partner® had taken possession of a brewery and stock in good faith under the provision of a will, which provision he thought he had sufficiently complied with. He died and transmitted the property to his son and executor, who also continued the brewery and became bankrupt.

The heirs of the original deceased partner after the lapse of eleven years discovered that the provisions of their ancestor's will as to the transfer had not been properly complied with. They filed a bill to get out their interest, which was sustained, and it was held that the creditors of the bankrupt were postponed to the heirs. Other people's property could not be applied to pay the bankrupt's debts. The same principle was enforced in the case of Flockton v. Bunning, L. R., 8 Ch. App. 324, note.

The principles upon which these decisions were founded are clearly these:

1st. That the representatives of a deceased partner have a lien upon the whole of the assets of firm subject to the payment of the debts of the firm for the amount which may be found to be the deceased partner's share of the firm's assets.

2d. That the surviving partner is entitled to the possession of the whole of the firm's assets for the purposes of liquidation; and he becomes a trustee for that purpose.

3d. That if the surviving partner continues the business of the firm, and uses the assets of the old firm in such continuation, he commits a breach of trust and misappropriates property upon which a lien has been impressed for the security of the representatives of the deceased partner.

4th. That if by such continuation the surviving partner has disposed of the assets and stock of the old firm and has invested the proceeds thereof in new stock so that the identity-of the old stock and assets⚫ are lost, and has mingled in such new stock property of his own in such a manner that it cannot be separated, the court will impress the lien of the representatives of the deceased partner upon the whole of the new stock to indemnify the trust fund, except as against a bona fide purchaser or a party having acquired a specific lien by the levy of an execution or attachment.

5th. That such lien will be enforced to the exclusion of the individual creditors of the surviving partner, upon the ground that it would be more inequitable to appropriate any portion of the trust funds to the payment of the individual debts of the surviving partner than that some portion of his individual property, which he has so mingled with the trust funds that its identity was lost, should be appropriated to the in-. demnification of the trust fund.

The surviving partner could give to the representatives of the deceased partner a mortgage upon or a bill of sale of the whole of his own estate to make good the trust fund to the exclusion of his individual creditors (and this is all the court does in enforcing this implied lien); but the surviving partner could not give a mortgage upon or a bill of sale of any portion of the substituted trust property to secure any of his creditors.

The court marshals the equities and gives a prior lien to the greatest.

In the cases cited the courts in deciding them seem to have considered to be established beyond all question that a lien existed even upon new stock, and devotes attention chiefly to the discussion of other ques*tions.

It seems to me that it would be useless to attempt to discuss at length these propositions because they of themselves at once suggest to the mind the common and plain legal and equitable principles upon which they are founded, and a more extended statement would tend rather to obscure than elucidate.

It follows, therefore, that the estate of Abraham Hooley, deceased, has a first lien upon all the assets of Gieve & Co., which have become so mingled with the assets of the old firm, and the proceeds thereof, as not to be distinguishable therefrom, to an extent nec essary to indemnify such estate.

The judgment should be affirmed, with costs. Daly, C. J., concurred; concurring opinion by Larremore, J.

NEW YORK COURT OF APPEALS ABSTRACT.

JURISDICTION OF STATE COURTS.

and imposes no duty on the mortgagee to protect the mortgagor's interest in the absence of special covenants. Dale v. McEvers, 2 Cowen, 118, distinguished, on the ground that here there was no lease and consequent right of the mortgagee to enter and enjoy the premises. Order affirmed. Cornell v. Woodruff. Opinion by Rapallo, J.

[Decided May 20, 1879.]

MECHANICS' LIEN-ACTION COSTS-NEW TRIAL.Under the mechanics' lien law applicable to Kings county, Laws of 1862, ch. 478, a notice of lien was filed on the 14th of April, 1877, and a judgment for defendant was The rendered January 14, 1878. plaintiff appealed, the judgment was reversed, and judgment of foreclosure was rendered in June, 1878. The law provides that "every lien created under this act shall continue until the expiration of one year from the creation thereof, and until judgment rendered in any proceedings for the enforcement thereof." Held, that the judgment was valid. The meaning of the law is that the lien, continues, if proceedings are commenced within the year and are pending at the end of the year, until judgment in such proceedings. Freeman v. Cram, 3 N. Y. 305; Benton v. Wickwire, 54 id. 226; Glacius v. Black, 67 id. 563, distinguished on the ground that the acts then considered provided for the continuance of the lien for a year only. Under the 9th section of the act the costs before judgment must be paid out of the proceeds of the sale and cannot be adjudged against the owner of the land. As the Special Term ordered judgment for defendant he had no opportunity or occasion to review the findings of fact, and the General Term should have ordered a new trial, and not have rendered judgment absolute for plaintiff. Therefore, judgment reversed and new trial granted,

CONTRACT VALIDITY - MARGINS.-A contract for the purchase and sale of goods is not necessarily rendered a wagering transaction by the fact that the goods were not delivered, although part payment was made. To render such dealings wagering transactions it should appear that the understanding at the time of contracting was that the goods were not to be delivered, and that nothing but the difference in the market • price should be paid or received. In a contract for sale of cotton, the defendant was notified on Saturday to make good his margins on Monday morning. Held, not a unreasonably short notice in view of the hazardous nature of the dealings. Judgment affirmed. Kingsbury v. Kirwan. Opinion per Curiam. [Decided May 20, 1879.]

FORECLOSURE-TAXES PAID BY MORTGAGLE — DEDUCTION FROM PURCHASE-MONEY ON SALE. At the time of foreclosure sale of real estate there were several years' taxes in arrear for which the premises had been sold, but no lease had been given. Certificates had been issued to plaintiff, the mortgagee, some as purchaser, others as assignee. After the foreclosure sale the plaintiff deposited in the office of the register of arrears the amount necessary to redeem from those tax sales, and produced the certificates of deposit to the sheriff on the foreclosure sale. The sheriff deducted the amount thereof from the purchase-money and reported a deficiency. Held, a proper deduction. The certificates of tax sales were liens until the time for redemption expired and a lease was given. Williams v. Townsend, 31 N. Y. 411. There is no such relation of trust between mortgagor and mortgagee as prohibits the latter from acquiring an adverse claim or lien against the mortgaged premises and enforcing it like a stranger. The mortgage is a mere security for a debt

Earl, J.

[Decided June 10, 1879.]

PARTNERSHIP -PAYMENT BY ONE PARTNER -RELEASE CONSIDERATION.-After dissolution of a partnership, a creditor holding the partnership note, agreed to accept the check and notes of one partner in full of his share of the partnership liability. The check and notes being accordingly given and being paid, and the time of payment of the partnership note being thus in part extended, held, that this constituted a valuable consideration for the agreement and the discharge of the maker from the partnership liability. The individual liability may be a higher security than the copartnership liability, because the latter is only first enforceable out of partnership assets. Waydell v. Luer, 3 Denio, 410; Beach v. Endress, 51 Barb. 570; Kent v. Reynolds, 8 Hun, 559; La Farge v. Herter, 11 Barb. 159; Harrison v. Close, 2 Johus. 447; Bliss V. Shwarts, 65 N. Y. 444; Line v. Nelson, 38 N.J. 358; distinguished. The doctrine that acceptance of part of a debt in full does not extinguish the debt rests upon want of consideration, and the cases holding that doctrine are distinguishable from this by that circumstance. Ryan v. Ward, 48 N.Y. 204; Bunge v. Koop, id. 229; Brooks v. Moore, 67 Barb. 394-5; Keeler v. Salisbury, 33 N. Y. 653; Carrington v. Crocker, 37 N. Y. 338. The addition to the security for the original debt is a consideration for the agreement. This dispenses with the necessity for a sealed release of the joint debtor. The agreement is valid, independent of the act of 1838. Judgment reversed and new trial granted. Ludington v. Bell. Opinion by Miller, J. [Decided April 25, 1879.]

PRACTICE-REVIEW OF AMENDMENT BY REFEREE.The proper mode of reviewing a decision of a referee allowing an amendment on the trial is by exceptions and appeal from the judgment. A motion at Special Term to set aside or strike out such an amendment is

improper. By section 1018 of the Code, the referee exercises the same power as the court as to amendments, and the review must be had in the manner provided for reviewing an amendment by the trial court. Woodruff v. Dickie, 5 Rob. 620; 31 How. Pr. 164; Secor v. Lord, 3 Keyes, 526. Order of General Term reversed and that of Special Term affirmed. Order denying plaintiff's motion at Special Term for leave to serve amended complaint is not appealable to this court, and appeal from that order dismissed. Quimby v. Claflin. Opinion by Rapallo, J.

[Decided May 20, 1879.]

REFERENCE-GROUNDS FOR REVIEWING FINDINGS.Action to set aside deed on account of mental incapacity, fraud and undue influence. In the deed the grantees covenanted to pay two-thirds of the expenses of the maintenance of the grantors for life and the life of the survivor. Held, that plaintiff was not entitled to a reference to ascertain the amount due to him for such maintenance, because the claim was inconsistent with the relief sought; and because the covenant was not with him, nor was he a party to the deed; and so he could maintain no action upon it. Error cannot be predicated on the showing that the opinion of the trial court shows that his findings of fact were founded on an erroneous view of the law. The only question reviewable here is whether there is any evidence to support a finding. If there is, it cannot be reviewed here, and the question must be determined by reference to the testimony, and not to the reasoning of the opinion. Judgment affirmed. Van Gelder v. Van Gelder. Opinion by Rapallo, J. [Decided June 3, 1879.]

VENDOR AND PURCHASER

RIPARIAN RIGHTS

TENDER-ABILITY TO PERFORM - PERSONAL COVEN

ANT-ACTION FOR BREACH OF CONTRACT.-The plaintiff contracted to convey by warranty deed, in exchange for lands of defendant, all the property owned by him in York county, Virginia, being a tract of land containing at least 2,100 acres lying on the south-westwardly side of the York river, at Bigler's Landing. Held, that in the absence of any special provision respecting the riparian rights, all that the contract called upon the plaintiff to convey with clear title was the upland, and whatever rights the grantee might acquire in the river or the land under water were subject to the public rights of the State of Virginia. The plaintiff's title stood in the name of his son-in-law, Brown, subject to the control and direction of plaintiff, and the deed offered by plaintiff was Brown's alone. No formal tender was made, but the referee found on conflicting evidence that the defendant did not object on the ground that the plaintiff had not joined. Held sufficient to support a finding that plaintiff was ready and willing to perform, the defendant not being able to perform on his part. The defendant was entitled to plaintiff's personal covenant, and Brown's deed was not a compliance with his contract, if defendant raised the objection. Robb v. Montgomery, 20 Johns. 15. The defendant's refusal to perform excused the plaintiff's formal tender, but to entitle him to damages for breach of contract he must show his own ability, readiness and willingness to perform. Morange v. Morris, 32 How. Pr. 178; 3 Keyes, 50, distinguished, on the ground that it was an action only to recover a payment on the ground that the vendor was not ready to perform. In such an action it is enough to show a breach by the party who has received the money. Lawrence v. Taylor, 5 Hill, 115. Not so when the action is to enforce the contract or recover damages. Judson v. Moses, 11 Johns. 95; Johnson v. Wygant, 11 Wend. 48; McWilliams v. Long, 32 Barb. 194; Morange v. Morris, 34 id. 311; Hinckley v. Smith, 51 N. Y. 21. However positively a vendee may have refused to perform, and however insufficient the reason

for his refusal, he cannot be subjected to damages without showing that he would have received what he contracted for had he performed. Heron v. Hoffner, 3 Rawle, 393, 400; Bank of Columbia v. Haguer, 1 Pet. 464; Travor v. Halsted, 23 Wend. 66. But unless it is found that the defendant refused to accept the deed upon the ground that it was not the vendor's personal covenant, it will be assumed in support of a judgment that his refusal was upon an untenable ground. Carman v. Pultz, 21 N. Y. 551. Defect in the grantor's title would not be waived by a failure to specify it, but not so of an objection to the form of the deed capable of remedy. The expenses incurred in examining the title were recoverable as damages. Cockcroft v. N. Y. Cent., etc., R. R. Co., 69 N. Y. 201. Judgment affirmed. Bigler v. Morgan. Opinion by Rapallo, J. [Decided May 20, 1879.]

OHIO SUPREME COURT ABSTRACT.*

JUNE 24, 1879.

BOND-FRAUD IN PROCURING EXECUTION. Four persons, including the defendant, agreed to execute a bond to the plaintiff. One of the persons who was to execute the bond, by fraud, procured a bond to be executed and delivered by the defendant, in which the names of two of the persons who were to join in the execution were omitted. Held, (1) that the fraud constitutes no defense to a suit on the bond, where the plaintiff had no notice of the fraud at the time he accepted the same and parted with the property, in consideration of which the bond was given; (2) that the plaintiff might have required the bond to be executed by all the parties, but was not bound to do so. He might waive his right to require the bond to be thus executed by all the parties; and the fact that the bond presented to the plaintiff and accepted by him, was the bond of two of the parties only, is no evidence to charge him with notice of the fraud practiced in its procurement. Dagler v. Baker. Opinion by White, J.

DYING DECLARATIONS - WHEN ADMISSIBLE. The general rule of evidence is, that dying declarations are admissible only when the death of the declarant is the subject of the charge, and the circumstances of the death are the subject of the dying declarations. Upon an indictment for unlawfully using an instrument upon the person of a woman with intent to destroy a vitalized embryo, in consequence of which she died, her dying declarations are inadmissible. State v. Harper. Opinion by Gilmore, C. J.

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EMBEZZLEMENT Upon a trial, under an indictment, containing a single count, charging the defendant with the embezzlement of moneys, where it appears that the moneys were the proceeds of several notes placed in his hands by his employer at different times and collected by him from different persons and at different times, such facts alone do not constitute a ground for requiring the prosecutor to elect upon which of the sums so collected the State will rely for conviction. A person having in his possession certain promissory notes as indorsee, who employs an agent to collect the same and account to him for the proceeds, is an employer within the meaning of the act against embezzlement; and upon the trial of the person so employed for the embezzlement of the proceeds, it is no defense to show that his employer was bound to account to another for the moneys. Where a person, not engaged in the business of collecting moneys for others as an independent employment is employed to collect money for another, subject to his direction and control, the relation of principal and agent is thereby created. And in such

EMPLOYER- AGENT VENUE.

* From E. L. De Witt, Esq., State Reporter.

case the agent may be guilty of embezzlement, although he was to receive for his services a percentage of the moneys collected. When an agent is prosecuted for the embezzlement of his employer's money, in a certain county wherein he had possession of the money and in which it was his duty to account to his employer upon demand being made, it is no defense to show that he had expended the money for his own use in another county. Campbell v. State. Opinion by McIlvaine, J.

PENNSYLVANIA SUPREME COURT

ABSTRACT.

LANDLORD AND TENANT - EVICTION - ACTION FOR USE AND OCCUPATION.- Where a tenant is evicted under a title paramount to that of his landlord from a portion of the premises leased to him, but continues to occupy and enjoy the rest of the premises, he remains liable to his landlord, in an action for use and occupation, for such proportion of the rent as the value of the part retained bears to the whole. The court said: "It is a well-settled rule that if a landlord wrongfully dispossesses his tenant of any portion of the demised premises, the rent for the whole is thereby suspended. In the present case the plaintiff committed no act after possession taken under the lease, by which his tenant was deprived of any part of the demised premises. On the contrary, the evidence shows that he tried to prevent the eviction. His offense consisted in demising premises to the defendant to a portion of which he had no title at the time. The eviction of the defendant was by virtue of a title paramount to the title of his landlord. matters not that the plaintiff

had previously held it. At the time the lease was executed and the relation of landlord and tenant be-tween the parties was created, the outstanding title of the adjoiner was as superior to the title of the plaintiff as if he had never held it. If the defendant had been evicted by paramount title from the whole premises, he would have been discharged from the payment of the whole rent, after that time. But an eviction, by such title, from a part only of the demised premises, when the tenant continues in possession of the remaining part using and enjoying it, does not work a suspension of all subsequent rent. He remains liable to the payment of such proportion of the rent as the value of the part retained bears to the whole. On having been evicted from a part, he might have removed from the residue, and thereby wholly relieved himself from the payment of future rent; failing to do 80, he became liable to a just apportionment. This conclusion is fully sustained in Taylor on Landlord and Tenant, § 378, and the English and American cases there cited. Our own cases recognize the same rule when the landlord conveys a part of the demised premises during the term aud possession of the tenant, and the vendee has entered and evicted the tenant from the part thus conveyed. By retaining possession of the remaining part he becomes liable to pay for the use of the portion thus retained. It is held not to be such a wrongful eviction by the landlord as to release the tenant from paying a just compensation for that which he continues to enjoy. Reed v. Ward, 10 Harris, 144; Linton v. Hart, 1 Casey, 193. Seabrook v. Moyer. Opinion by Mercur, J.

RECORD OF INSTRUMENTS -WHEN RECORD IN ANY BOOK SUFFICIENT.-In the absence of statutory enactment directing the recorder of deeds to record certain instruments of writing in a particular book, such instruments are properly recorded in any of the books kept by him; and a mortgage, or a builder's contract is valid, although recorded in the deed book. Luch's Appeal, 8 Wr. 519, overruled; McLanahan v. Reeside, 9 Watts, 511, affirmed. The act of April 3, 1872 (P. L.

857, repealed by act of March 6, 1873, P. L. 217), enacted that every building erected under a written contract should be liable to the contractor alone for work done or materials furnished in pursuance thereof with the proviso that such contract should be duly recorded within fifteen days of its execution. In an action upon a mechanic's lien against the owner, the defendant put in evidence a written contract for the construction of the house recorded in the deed book. Held, that the contract was properly recorded in the deed book. Per Paxson, J. In contemplation of law

a paper is recorded the moment it is lodged in the office and the fees paid. * * * When a man has complied with the law by depositing his papers in the recorder's office and paying the fees, it would be a hard rule that would deprive him of his lien or his estate because of an error of the recorder in recording the instrument in the wrong book. It would be different were there an act of Assembly directing in what book the particular paper should be recorded. In such case the recorder might be liable upon his official bond for a failure to proceed as required by law. Glading v. Frick. Opinion by Paxson, J.; Mercur, J., dissenting.

WRONG BOOK.-A deed is in contemplation of law recorded when it is left for record at the recorder's office, and is valid notice from that time, though it be recorded in the wrong book and omitted from all the deed and mortgage indices. March 6, 1879. Clader v. Schaefer. Opinion per Curiam.

MICHIGAN SUPREME COURT ABSTRACT.

APRIL TERM, 1879.

ABATEMENT OF NUISANCE BY DESTRUCTION OF PROPERTY. - Plaintiff in error was prosecuted for causing a public nuisance in the city of Pontiac by means of a mill-dam therein across the Clinton river. The jury found a general verdict of guilty, and the court imposed a fine of $50 enforceable by imprisonment, and ordered that the dam should be removed at the expense of plaintiff in error, but at such time and in such manner as the city board of health should direct. Held, a court is not obliged to order the destruction of property which it has decreed to be a nuisance. Crippen v. People, 8 Mich. 117. Comp. L., § 1702, permits the destruction of certain nuisances by the board of health of the township; § 1740 provides who shall constitute the board of a city. Held, that where the city charter provides for the board, these provisions cannot apply. Property cannot be destroyed for the abatement of a nuisance until its destruction is lawfully ascertained to be necessary therefor, and then only so far as is determined to be necessary. Welch v. Stowell, 2 Doug. (Mich.) 332; Bloomhuff v. State, 8 Blackf. 205; State v. Kaster, 35 Iowa, 221; Finley v. Hershey, 41 id. 389; Brightman v. Inhab. of Bristol, 65 Me. 426; Miller v. Burch, 32 Tex. 208; 5 Am. Rep. 242. An information charging that a dam creates a nuisance must be precise in its allegation and clear in its statements of consequences, to justify destroying the dam to remove the nuisance. Shepard v. People (Mich. Lawyer).

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MASTER AND SERVANT-DUTY OF MASTER AS TO MACHINERY CONTRIBUTORY NEGLIGENCE.- An employer who introduces improved and complex machinery must take such corresponding precautions to keep his employees from harm in using it as are customary with prudent men. Cooley on Torts, 556–7, and cases cited; M. C. R. R. Co. v. Dolan, 32 Mich. 513. An employer must furnish a suitable place in which his servant, with due care, may do his work without exposure to dangers that are not usual to his occupation

as ordinarily performed. Coombs v. New Bedford Cordage Co., 102 Mass. 572. An employee assumes the risks of his employment when the machinery used is not defective, and the usual means are adopted to guard against accidents. But if he voluntarily remains in service in spite of any deficiencies in either respect, and without any promise by the master to correct them, he is without remedy for any injury he may suffer in consequence. The master is guilty of negligence, and the servant of contributory negligence. An employee is not bound, before beginning work, to familiarize himself with the condition of all the machinery he may come in contact with. It is enough if he knows his own work and the risks directly connected with it. If a servant shows that he has been injured in consequence of an unusual risk due to his master's negligence, the master has the burden of showing that the servant knew of the increased danger. Cooley, 661 et seq. When the fact of contributory negligence depends on the credibility of witnesses, or upon inferences in which intelligent persons may honestly differ, it is a question for the jury. Conely v. McDonald, 40 Mich. 150; Dublin & C. R. R. Co. v. Slatterly, 39 L. T. Rep. (N. S.) 265. Contributory negligence presumes a careless act or omission. The age, intelligence and experience of one who has suffered from an injury help determine whether he has been guilty of contributory negligence. Reed v. Northfield, 13 Pick. 94; Whittaker v. West Boylston, 97 Mass. 273. Swoboda v. Ward. Opinion by Marston J. (Mich. Lawyer).

CRIMINAL LAW.

BIGAMY-INDICTMENT - PLEADING EXCEPTION TO THE STATUTE.-On an indictment for bigamy, held, not necessary to the sufficiency of the indictment that it should have alleged, either that the party indicted anew at the time of his second marriage that his former wife was then living, or that she was not beyond seas, or that she had not absented herself for the continuous period of seven years before the second marriage. Where there is an exception so incorporated | with the enacting clause of the statute that one cannot be made without the other, then the exception must be negatived in the indictment. But that is not the case with the statutes under consideration. Here the enacting clause of both statutes is perfectly complete and the provisos making the exceptions follow as distinct clauses of the statute. In such case it is not necessary to negative the exceptions in the indictment, but the facts raising the exception relied on must come from the defense. Steele v. Smith, 1 B. & Ald. 94: Bode v. State, 2 Md. 201, 211. Moreover, the indictment used in this case appears to be in exact conformity to the approved precedents under the statute 1 Jac. 1, ch. 11; 3 Chit. Cr. L. 721. See, also, Murray v. Queen, 7 A. & E. N. R. 700. If upon the trial it had been proved by the accused that he and his first wife had lived separate and apart for the period of seven years immediately preceding the second marriage, it would then have been incumbent on the prosecution to have shown that during that time he was aware of her existence; and in the absence of such proof he would have been entitled to an acquittal. But that is a principle to be applied to the proof, and not to the frame of the indictment. Reg. v. Curgerwen, L. R., 1 Cr. Cas. Res. 1. MarylandiCt. of App. Barber v. State. Opinion by Alvey, J.

INDICTMENT-COMPELLING PROSECUTION TO ELECT COUNTS.- Indictment contained two counts, one for malicious shooting with intent to kill; the other for malicious shooting with intent to wound. Held, that the defendant was not entitled to an order compelling

* * ac

the prosecution to elect on which count he would proceed. A general verdict of guilty on such indictment sustained. The court said: "The author of Wharton's Criminal Law states the law on this subject to be settled in this country, that the right of election, i. e. the right to require the prosecution to elect, is confined to cases when the indictment contains charges which are actually distinct and grow out of different transactions. The court will not compel the prosecutor to elect upon an indictment charging the prisoner with larceny and receiving stolen goods, etc., when it appears by the indictment that the charges relate to the same transaction modified to meet the proof. In New York the law has been similarly stated, and in cases of felony, where two or more repugnant offenses are contained in the same indictment, it may be quashed or the prosecutor compelled to elect upon which charge he will proceed; but such election will not be required to be made when several counts are inserted in an indictment solely for the purpose of meeting the evidence as it may transpire on the trial, the charges being substantially for the same offense. Whether a court will compel a prosecutor to elect which count to proceed on rests in the discretion of the court and cannot be assigned for error." Whart. Am. Crim. Law, § 423. The offenses of maliciously shooting, stabbing, cutting or shooting at any person with intent to kill, wound or maim, are provided for in one section of the statute, sec. 16 of the Criminal Code, p. 722, Gen. Stat. The penalty for each of such offenses is the same. The only difference between the two counts of the indictment in this case consists in the difference of the intent with which it is alleged the shooting was done. Such intent could only be gathered from the facts and circumstances surrounding the parties at the time, and the prosecution might well be in doubt as to what might be the effect of the testimony before the trial jury, and we think the law permitted him to frame two counts, so that whether the jury believed the defendant guilty of having maliciously shot the person named in the indictment with intent to kill, or only with intent to wound, in either case they might find him guilty." Nebraska Sup. Ct., April 12, 1879. Candy v. State. Opinion by Cobb, J.

PARTNERSHIP LAW.

RIGHT OF RETIRING PARTNER TO SUBROGATION.-A partner who goes out, and for a valuable consideration is indemnified by his partners against all debts and liabilities of the firm, stands in the attitude of a stranger as against a creditor of one of the partners for his in-. dividual debt whose judgment has been obtained since his outgoing. He is, therefore, entitled to subrogation for a debt of the firm paid by him for which he was not liable, as between himself and partners, at the time of leaving the firm. Pennsylvania Sup. Ct. Scott's Appeal. Opinion per Curiam.

SURVIVING PARTNER RIGHTS AND DUTIES IN SETTLING BUSINESS.-A'tenant or firm property may become equitably responsible to the representative of a deceased partner, and an agreement to substitute payment of a reasonable rent, would not render the case against him so defective as to preclude fixing the amount in a suit in equity, especially when testimony has been introduced at great expense without any reasonable attempt to oppose the jurisdiction. A surviving partner, though legally vested with title to all firm property, is also trustee of them for the best interests of decedent's estate; and is bound to keep its representative fully informed of their condition. A partner must use his best efforts and judgment in promoting the firm business without further compensation than his share in the profits. The sickness of a partner is one