In the present case, as no negligence is imputed to the railroad company, except in using a passenger coach with a draw-bar connected with a defective spring, or with some other defective appliance, and as it is not shown that the railroad company, or any of its employees, or, indeed, any other person, had any knowledge or notice of such defect prior to the occurrence of the accident upon which the plaintiff's action is founded, it cannot be said that any negligence whatever upon the . part of the railroad company has been shown; and the verdict and judgment in the court below should have been rendered in favor of the railroad company; but they were not, but, on the contrary, both were rendered against the railroad company. After the verdict was rendered, the defendant moved the court to set it aside and ask for a new trial, upon various grounds, among which were the grounds that the verdict was not sustained by sufficient evidence and was contrary to law; but the court overruled the motion and rendered the judgment aforesaid. Of course by this ruling the court approved the verdict of the jury. But as the verdict and judgment are not sustained by sufficient evidence, although approved by the trial court, it becomes the duty of this court to set them aside and grant a new trial. It has frequently been held in this court that whenever the verdict of a jury, or any necessary and material fact involved in the verdict, is not sustained by the evidence, or by any sufficient evidence, the Supreme Court will set it aside and grant a new trial, although the verdict may have been approved by the trial court. Backus v. Clark, 1 Kas. 304; Ermul v. Kullok, 3 Kas. 499; Howe v. Lincoln. 23 Kas. 463; Irwin v. Thompson, 27 Kas. 643; U. P. R. Co. v. Dyche, 28 Kas. 200, 206; Johnson v. Burnes, 29 Kas. 81, 86; Reynolds v. Fleming, 30 Kas. 106; Babcock v. Dieter, 30 Kas. 172.

The judgment of the court below will be reversed and cause remanded for a new trial.

effecting the recovery for which the bond provided, and counsel fees paid for services in setting aside the restraining order will be considered as an element of damages. Aiken v. Leathers, S. C. La., New Orleans, May 18, 1885.

2. CO-TENANCIES.-[Lien]-Co-Tenant no Lien for Rent on Share of Other Co-Tenant.-A joint tenant or tenant in common is not entitled to a lien upon the share of his co-tenant for rents collected by the latter before partition. [In giving the opinion of the court Lewis, J., says: "We have not been referred by counsel to any authority, nor have we been able to find any recognizing the existence of a lien in favor of one tenant in common or joint tenant upon the interest of his cotenant for the payment of the value of rents and profits received by the latter before partition of the land. It has been held by this court that a tenant in common purchasing a conflicting claim to land which enures to the benefit of his co-tenant, has an equitable lien for a due proportion of the price so paid by him. Venable, etc. v. Beauchamp, 3 Dana, 321. It has also been held that there may in certain cases exist a lien on the estate for repairs and improvements done by one joint owner. Alexander v. Ellison, etc., 79 Ky., 148. But it never has been held by this court that rents and profits received by one joint owner previous to partition of the land, constitute anything more than a personal charge against him. The lien in favor of one joint owner of land, whenever recog nized to exist at all, is founded upon the doctrine of contribution in equity, and the only reason for enforcing it for improvements arises from the necessity for the preservation of the estate, or the benefit to the joint owners by an enhancement of its value. But there is no reason why there should be a charge or incumbrance upon the interest of one joint owner, either before or after partition, to satisfy a claim of his co-tenant for rents and profits received. The right to partition exists and may be enforced, and pending the action therefor, the chancellor may amply protect the rights of each joint owner, by placing the estate in the hands of a receiver, or by other proper provisional remedy. But it is not the policy of the law to enforce liens upon the interest of one joint owner of land in favor of another for unadjusted, and to innocent purchasers and creditors often unknown, accounts for rents and profits."] Burch's Heirs v. Burch's Heirs, Ky. Ct. of App., March 31, 1885; 6 Ky. Law Repr. 691.

3. CONSTITUTIONAL LAW- [Legislative Büls]— Reading Bills in Legislature.-§ 15, art. IV, of the constitution, requiring that every bill shall be read on three several days in each house, does not require reading thereof in each house on three several days after amendment. People v. Thompson, S. C. Cal., May 28, 1885; 6 W. C. Rep. 564.

4. CRIMINAL LAW-[Larceny]-Larceng of Planted Oysters.-Oysters, when taken and reduced to possession, are the property of the captor and may be the subject of larceny. Being sedentary and incapable of locomotion, they are not properly feræ natura, and property in them is not forfeited by restoring them to their natural element, when they are bedded there by their owner for purposes of preservation and growth, when the beds are marked by poles or other visible indicia of ownership, and when the place is not a natural oyster bed. State v. Casselari, S. C. La., New Orleans, May 25, 1885.

5. CRIMINAL Procedure-[Arrest]—What Notice the Officer is Bouud to Give of His Official Character and Purpose.-When an officer is empowered by law to arrest without warrant, he is not in every case bound before making the arrest, to give the party to be arrested clear and distinct notice of his purpose to make the arrest, and also of the fact that he is legally qualified to make it. Where the offender in question is openly and notoriously engaged in breaking the law, as for example, where he is maintaining a gambling-table in a public place, it is sufficient for the officer to announce his official position, and demand a surrender. If this is refused, the officer is not liable to indictment for assault when he endeavors by force to secure his prisoner. [In the opinion of the court, by Sterrett, J., it is said: "One of the questions involved in the second specification is whether an officer, authorized to arrest without warrant, is bound, before doing so, 'to give the party to be arrested clear and distinct notice of his purpose to make the arrest, and also of the fact that he is legally qualified to make it." In other words, may the officer be convicted of assault and battery for making the arrest without first giving such notice? While in most cases, it may be prudent for the officer to give the notice before making the arrest, it is going too far to say in effect that he is required to do so; and, therefore, we think the learned judge erred in charging the jury as he did on that subject. In considering the question as presented by the undisputed facts of this case, it is fair to assume that the constable and his assistants, plaintiffs in error, were authorized to make the arrest; that the authority, with which the constable was expressly clothed by the act, was at least equivalent to a warrant. It is doubtless the duty of an officer who executes a warrant of arrest to state the nature and substance of the process which gives him the authority he professes to exercise, and, if it is demanded, to exhibit his warrant that the party arrested may have no excuse for resistance (1 Chit. Cr. L. 51). On the other hand, as is said in Commonwealth v. Cooley, (72 Mass. R. 350, 356), "the accused is required to submit to the arrest, to yield himself immediately and peaceably into the custody of the officer, who can have no opportunity until he has brought his prisoner into safe custody to make him acquainted with the cause of his arrest, and the nature, substance, and contents of the warrant under which it is made. These are obviously successive steps. They cannot all occur at the same instant of time. The explanation must follow the arrest, and the exhibition and perusal of the warrant must come after the authority of the officer has been acknowledged and his power over his prisoner has been acquiesced in." The general principle thus stated is equally applicable to arrests without warrant under authority of the statute."] Shoolin v. Com., S. C. Pa., April 16, 1884; 15 Weekly Notes of Cases, 410.

6. COUNTY [Criminal Procedure]-Liability for Board of Jury in Murder Case.-When the court, on trial of a murder case, considers it necessary to have the jury secluded, and by its order they are boarded at a hotel, the county where the case is tried, will be held liable for the expense thus incurred, and a mandamus will issue to compel the board of supervisors to audit the claim of the hotel-keeper. [Campbell, J., in giving the opinion of the court said: ["The fact that there are not many authorities on this subject rather tends to indicate acquiescence in this practice than other

wise. There is, however, some authority upon it.. In civil cases, the charges are not usually allowed against the county, as the jury will seldom be put apart during trial, and the whole matter of their maintainance is arranged by consent, where this is done. The rule in civil cases is laid down in Young v. Buncombe, 76 N. C. 316. But in criminal cases the power of the court to keep them in custody, and to bind the county to pay their maintenance, is established by several cases, and is believed to have been done without dispute heretofore in this State. For cases elsewhere, see Fernekes v. Supervisors, 43 Wis. 303; Com. v. Clue, 3 Rawle, 498; Com's v. Hall, 7 Watts, 290; State v. Engle, 13 Ohio, 492; Sargent v. State, 11 Ohio, 474; State v Armstrong, 19 Ohio, 116; Commissioners of Alleghany Co. v. Commissioners of Howard Co., 57 Md. 393; Bates v. Independence Co., 23 Ark. 723. The latter case is chiefly significant as showing it to be a county charge. Of the power of courts to incur similar expenses generally for court exigencies, so as to bind the county, without statute, the authorities are quite clear. People v. Stout, 23 Barb. 349; McCalmont v. Allegheny Co., 29 Pa. St. 417; Supervisors of Crawford Co. v. LeClerc, 4 Chand. 56; White v. Polk Co., 17 Iowa, 413. Our own decisions have always held that while the su pervisors are, under the constitution, exclusive judges of the propriety of services for the county, yet they have no such exclusive power over those county charges that are not for such services; and we have also held that the expenses of justice are incurred for the benefit of the State, and only charged against the counties in accordance with old usage, as a proper method of distributing the burden. People v. Auditors of Wayne Co., 13 Mich. 233. Also cases in note to Kennedy v. Gies, 25 Mich. 83, (Annotated Ed.). Any other rule would put it in the power of a board of supervisors to prevent courts from exercising their proper functions. In my opinion the supervisors were bound to audit this account.] Stowell v. Jackson, S. C. Mich., May 13, 1885; 23 N. W. Rep. 557.

7. DEBTOR AND CREDITOR.-[Sale of Personalty.] Vendor of Personalty on Condition, no. Title against Creditor of Vendee, when.-Where originally an absolute sale of certain personal property is made, under which the purchaser takes possession, and, subsequently, finding himself unable to pay, takes a lease of the property from his vendor, on compliance with the terms of which a bill of sale is to be made out, no change of the actual possession taking place, the vendor has no title as against creditors of the vendee. Wagner v. Commonwealth, S. C. Pa., March 25, 1885; 16 Weekly Notes of Cases, 75.

8. FIRE INSURANCE.―[Increase of Hazard.]- When Alterations must have been made by Tenant with Consent of Owner.-Where a fire insurance policy provides that any change increasing the hazard, either within the premises or adjacent thereto, within the control of or known to the assured, and not reported to the company and agreed to by indorsement thereon, will render the policy null and void. To defeat a recovery in action for loss, the company must affirmatively prove that changes made by a tenant, which increased the hazard, were made by the consent of the owner or his agent. Merrill v. Insurance Co., U. S. Cir. Ct., Dist. Minn., March, 1885; 23 Fed. Rep., 245.

the proofs of loss, to defeat a recovery,must be false to the knowledge of the assured, and made for the purpose of defrauding the company. Ibid. 10. INSOLVENCY.-[Assignee.]-When Suit Cannot be Brought before Demand made on Assignee to Sue.-No suit can be brought against the assignee of an insolvent, and a creditor to whom he has made a conveyance in fraud of his other creditors, until a demand has been made upon the assignee to sue, and he has refused so to do. Richardson v. Day, U. S. Cir. Ct., N. D. Ill., Feb. 15, 1885; 23 Fed. Rep. 227.

11. JUDGMENT. [Presumption of Payment—Question for Jury.]-When Payment a Question for Jury where Twenty Years have not Elapsed.Where twenty years have not elapsed since the rendition of a judgment, on a scire facias quare executionem non, the question whether the judgment has been paid may be submitted to the jury, if, in addition to lapse of time, there are circumstances persuasive of the conclusion of payment. If there are no such circumstances, the question cannot be submitted to the jury unless twenty years have elapsed. [In the opinion of the court so holding, Green, J., said: "In the recent case of Peter's Appeal, not yet reported, our brother Paxson, delivering the opinion of the court, said: "After a lapse of twenty years mortgages, judgments, and all evidences of debt are presumed to be paid (Foulk v. Brown, 2 Watts, 209); and a recognizance in the Orphans' Court (Beale v. Kirk, 3 Norris, 415); and in less than twenty years, with circumstances, payment may be presumed (Hughes v. Hughes, 4 P. F. S. 240; Brigg's Appeal, 12 Norris, 485). After twenty years the law presumes that every debt ́is paid, no matter how solemn the instrument may be by which such debt is evidenced. And such presumption.stands until rebutted." In Moore v. Smith (31 P. F. S. 182), we said: "A legal presumption of payment does not indeed arise short of twenty years, yet it has been held that a less period with persuasive circumstances tending to support it may be submitted to the jury as ground for a presumption of fact." In Henderson v. Lewis (9 S. & R. on p. 384), Gibson, J., said: "When less than twenty years has intervened no legal presumption arises; and the case not being within the rule, is determined on all the circumstances, among which the actual lapse of time, as it is of a greater or less extent, will have a greater or less operation." In that case a period between sixteen and seventeen years had elapsed and was held sufficient with proper circumstances. The same doctrine was stated in Hughes v. Hughes (4 P. F. S. 240), and Thompson, J., added to the statement: "Slight circumstances may be given in evidence for that purpose in proportion as the presumption strengthens by lapse or time. In Diamond v. Tobias (2 Jones, 312), Coulter, J., said: "The rule is well established that where the period is short of twenty years the presumption of payment must be aided by other circumstances beside the mere lapse of time. But exactly what these circumstances may be, never has been and never will be defined by the law. There must be some circumstance; and where there are any, it is safe to leave them to the jury." In Brigg's Appeal (12 Norr. on p. 488), Mr. Justice Sterrett says: "While the general rule undoubtedly is that the presumption does not arise until twenty years have elapsed, it is well settled that a shorter period than that, aided by circumstances which contribute to strengthen such presumption, may furnish suffi

cient grounds for inferring the fact of payment."] Hess v. Frankenfeld, S. C. Pa., April 28, 1884; 15 Weekly Notes of Cases, 405.

12. MARRIED WOMAN-Can Charge her Separate Estate by Parol Contract.-A contract by which a married woman charges her separate estate, in equity, with the payment of a debt, need not be in writing. Elliott v. Lawhead, S. C. Ohio, April 28, 1885, 13 Weekly Law Bulletin, 601.

13.

14.

-. Action to Enforce such Charge is an Equitable Action.-An action founded on such a contract, where a personal judgment against a married woman is not authorized, is of an equitable nature, of which a court of equity alone has jurisdiction. Ibid.

Rule that Creditor must Exhaust Remedy at Law not Applicable.—The rule that a creditor must exhaust his remedy at law before seeking equitable relief, does not apply to an action to charge the separate estate of a married woman for the payment of a claim, where the statute gives no remedy at law. Ibid.

15.. Prior Proceeding by Attachment no Bar to Remedy in Equity.-A prior action to recover a money judgment, in which it is sought to reach the same separate property by attachment, in which the plaintiff fails, is no bar to a suit in equity to charge such separate property, with the payment of the same claim. Ibid.

16. MUNICIPAL CORPORATION. [License Tax.]— Power to Tax Employments Construed not to Include Railroad Companies.-Authority granted by charter to the City of L to impose a license tax upon persons engaged in certain enumerated callings, and “upon any other person or employment which it may deem proper, whether such person or employment be herein specially enumerated or not," does not empower the city to impose such a tax upon a railroad corporation doing business therein. The rule of construction applicable in such a case is, that when a particular class of persons or things is spoken of in a statute, and general words follow, the class first mentioned must be taken as the most comprehensive, and the general words treated as referring to matters ejusdem generis with such class. [The court, per Hinton, J., after deferring to the doctrine that grants of power to municipal corporations are construed strictly, says: "Now, it is undeniably true that, for civil purposes, corporations are deemed and taken as persons when the circumstances in which they are placed are identical with those of natural persons expressly included in the statute. Balto: & Ohio R. Co. v. Gallahue, 12 Gratt. 663; and perhaps, under our Code, ch. 15, § 13, p. 195, which provides that the word person may extend and be applied to bodies politic and corporate as well as individuals,' that word 'person' must be held to embrace, even in statutes which confer the power of taxation, artificial as well as living beings, unless there be something in the subject matter, object, words or frame of the act, indicating that such was not the purpose of the legislative mind. Western Union Tel. Co. v. Richmond City, 26 Gratt. 1: Miller v. Commonwealth, 27 Gratt. 110. This, however, is not the ordinary sense in which this word is used, and it cannot be denied that in its usual and common acceptation it does not extend to corporations. It is equally true that the word "employment," in its ordinary and natural acceptation, does not extend to or include either a railroad corporation or

its business. In the case of The City Council v. Lee, 3 Brev. R. 227, Nott, J., in discussing the question whether a tax "on all profits or income arising from the pursuits of any faculty, profession, occupation, trade or employment," included the salaries of public officers, said: "The word 'employment' is the only word under which it is pretended that they can be included. I do not know," says he, "that this word is anywhere used as a technical term. It is a common word, generally used in relation to the most common pursuits, and, therefore, ought to be received by this court as understood in common parlance. And so we think it must be understood in this case. If, therefore, the words "persons and employment," used in this statute, are to be taken according to their natural import, it will be at once seen that they cannot be held to comprehend a railroad corporation, which is neither a person nor an employment within the ordinary acceptation of those words. Nay, more, if we shall find no language in the statute indicating that these words were used with reference to a higher and different class of persons and employments than those enumerated in the preceding special words, we must construe the words persons and employments as applicable to persons and employments ejusdem generis with the enumerated classes; for the well established rule in the construction of statutes is, that where particular words are followed by general ones, the latter are to be held as applying to persons and things of the same kind with those which precede. Potter's Dwarris, 236. Which means no more, as has been acutely observed by a learned judge, than this, that the law should be construed according to the apparent intention of the legislature, to be gathered from the language used connected with the subject of legislation, so that its terms shall not be extended by implication beyond the legitimate scope of import of the words used. Wagner, J., in City of St. Louis v. Laughlin, 49 Mo. 563. But it has been argued with great power and ability that these words, when taken, as they must be, in connection with the words which follow them, are broad enough to include railroad corporations, and plainly manifest an intention on the part of the legislature to exclude the application of the rule of ejusdem generis from this statute. Such, however, does not seem to us, after a careful consideration of the terms of the statute, to be the case. For the words "which it may deem proper," taken in the connection in which they are found, do not seem to be entitled to any special significance. They do, indeed, confer in express terms a discretion which the council would doubtless have had if they had been entirely omitted. But that discretion, far from enlarging and elevating the power of the council, in the matter of taxation, to subjects of a higher degree, really imports a discretion in the council to tax only such subjects analogous to the enumerated classes as the council may see fit to select. And whilst the obvious import of the words "whether such person or employment be herein specially enumerated or not, and whether any tax be imposed thereon by the State or not," is to extend the power of the city to tax other persons and employments than the enumerated classes, regardless of whether they are taxed by the State or not, it cannot be said to necessarily convey the idea that these new taxable subjects shall be different in character or higher in degree. After a careful examination of the act, we are unable to discover anything which clearly indicates an intention on the part of the legislature

to confer upon this municipal council the power to tax railroad corporations under cover of these general words. We must therefore hold, in accordance with the uniform current of authority, that the general words here used are restricted to such persons and employments as may be analogous to those previously mentioned. In Sandiman v. Breach, 7 Barn. & Cress., 96, the words "other person or persons" was held not to have been used in a sense large enough to include the owner and driver of a stage coach. In Casher v. Holmes, 2 Barn. & Adolp. 596, the words "all other metals" were held not to include gold and silver, which arǝ precions metals. In Rex v. Cleworth, 4 B. & S. (116 E. C. L.), 927, a farmer was held not to be within the Stat. 29, Car. 2, c. 7, § 1, which enacts that no tradesman, artificer, workman, laborer, or other person whatsoever, shall do or exercise any worldly labor, business or work of their ordinary callings, upon the Lord's Day or any part thereof," etc. In Butler's Appeal, 73 Penn. St. R. 452, the clause "also all other places of business or amusement conducted for profit," were held not broad enough to embrace bankers, brewers or druggists. And in the City of St. Louis v. Laughlin, 49 Mo. 564, the sweeping words "all other business, trades, avocations or professions whatever," were held not to include persons not of the same generic character or class with the specifically enumerated classes, and hence the City of St. Louis had no power to pass an ordinance levying a tax on attorneys-atlaw. See also Broom's Legal Maxims, 7 ed. 651."] Lynchburg v. Railroad Co., Va. Sup. Ct. of App., Feb. 19, 1885; 9 Va. L. J. 377.

17. NEGLIGENCE [Master and Servant-Parent and Child-Railway Company, when liable to Father of Minor Employee for Negligent Injury.-A railroad employing a minor to act as brakesman or in any other dangerous capacity, without the knowledge or consent of his father, assumes all risks incident to such service, and is liable to the father for injuries sustained by the boy in the course of the employment, though occasioned by the boy's own negligence or unskillfulness. [The injured minor was sixteen years old. He had been employed by the company for wages, but had been discharged. When injured he was voluntarily acting as brakeman with the consent of the train conductor. Holt, J., in giving the opinion of the court, said: "It is not necessary that he should have been employed for wages when the injury was received in order that the father may recover. If he was then rendering service for the appellant by the request or direction of its general agent as to the business in hand, and which was certainly of a character dangerous to life and limb, then being under age, it was a wrongful interference with the right of the appellee to control him. The conductor knew from his appearance that he was under age, and he received and used him. This was an exercise of dominion and illegal control over him by the general agent of the appellant at war with the father's rights. The appellant cannot shelter under the claim that it did not know that the apellee objected to the son rendering the service, since it was its duty to know that the appellee was willing to it before it took control of him. The duty of the father to educate and maintain the son en titled the former to the son's services, and placed him in the attitude of a master to him or created the relation of master and servant; and any interference with the master's right to control the servant by another renders the latter liable at least

for any injury that was likely to result from such illegal conduct. If one engages the servant of another in an obviously dangerous business, he renders himself responsible for any injury the servant may sustain while so engaged, and which can rationally be attributed to the undertaking; and this is so, even if the injury results immediately from the neglect or unskillfulness of the servant, owing to the fact that the person by so illegally interfering assumes all the risk incident to the service."] Louisville etc. R. Co. v. Willis, Ky. Ct. App., May 7, 1885; 6 Ky. Law Repr. 784.

18. NEGOTIABLE INSTRUMENTS [Payment]-Party Bound for Payment cannot take up and Re-issue. -If one, not a party to a note, but bound for its payment at maturity, actually so pays it, the note is thereby discharged, and cannot be re-issued by such party. [In giving the opinion of the court, Lewis, P. J., said: "In Lancey v. Clark, 64 N. Y. 209, the defendant made his note for the accommodation of the firm of Lambert & Lincoln, for whom it was discounted. Before the note matured, Lincoln wrote to the plaintiff to take up the note and to furnish money for that purpose. The plaintiff sent the money to Lincoln, who placed it in bank to his individual credit, and on the day the note fell due took up the note with his individual check. He did not assume to act for the plaintiff or ask to have the note transferred to any one. He asked to have the note protested so that he could hold the indorser and maker after protest. After he had thus paid and taken it, he sent it to the plaintiff. In an action on the note it was held that the plaintiff did not take title from the bank, but from Lincoln, and subject to any defense against it in the hands of the latter; that the bank could not be made a seller without its knowledge or consent and did not transfer the note but only took payment, and that the plaintiff was not entitled to recover. The court said: "The plaintiff did not take title from the bank. It matters not that he furnished the money, and that Lincoln promised to use it in taking up the note for him. It matters not that the note was protested so that the indorser and maker could be held, or that the bank did not intend absolutely to discharge and cancel the note. The question is, did the bank transfer or sell the note to the plaintiff?

All

the bank did was to take payment of the note, and deliver it up to the party paying and liable to pay, after protesting it, so that he could make such use of it as the law and the facts would authorize. It did not transfer or intend to transfer it. The plaintiff, therefore, took no title to it from the bank, but he took it from Lincoln, and cannot, therefore, enforce it against the defendant.' The same principle was asserted in Eastman v. Plumer, 32 N. H. 238. In that case the defendant executed the note upon which the suit was brought as surety. At its maturity it was taken up by the principal debtor with money furnished for the purpose by the plaintiff. Thereupon the note was surrendered, but the plaintiff was not known in the transaction by the holder to whom the money was paid. It was held that the note was satisfied. and that the action was not maintainable. To the same effect is the opinion of Judge Hughes, of the United States District Court, in Dooley v. F. & M. Ins. Co., 3 Hughes 221; see also 2 Daniel on Neg. Insts., § 1222."] Citizen's Bank v. Lay, Va. Ct. App., April 16, 1885; 9 Va. L. J. 499.

19. NUISANCE-[Highway.]—Railroad Switch when a Nuisance to Abutting Owner.—A railroad switch

or turn-out, laid without lawful permission on part of a public street, is a nuisance which the owner of property in front of which the same is used is entitled to have abated, as inflicting injury peculiar to himself, but such owner has no standing to champion the rights of others, in front of whose property the switch is laid with municipal authority and who do not complain. Bell v. Edwards, Sup. Court of La., New Orleans, May 18, 1885.

20. PARTNERSHIP.-[Lien.]—Lien of Partner on Partnership Realty.-Where a firm of lawyers take a tract of land in payment of a fee and hold it in their joint names, an individual creditor of one of them can not subject the land until the co-partner had first been paid what is due him on a settlement of the partnership accounts. [In the opinion of the [court Holt, J., says: "It is unnecessary to review the numerous cases. To do so we would have to begin with the opinions of Lord Thurlow upon one side and those of Lord Eldon upon the other; and we shall content ourselves with saying, that we think the true principle, deducible from all of them, is that if real property has been purchased with the firm means, and is held in the joint names of the partners as partnership property, then, in the absense of any agreement between. them to the contrary, it should be regarded at law as held and owned by them as tenants in common; but that in equity it should be treated as held by them in trust for the firm; subject to the rules applicable to partnership personal property, and liable to the debts of the firm, and the claims of each partner upon the others; and after these claims are satisfied the residue of it, if any be left, will belong both at law and in equity to the partners as tenants in common unless they have by an agreement, either express or implied, impressed upon it the character of personal property for all purposes. It is really a question of intention upon the part of the partners, to be gathered from all the attending circumstances, without regard to whether the title is vested in one of the partners for the firm or all of them. It must be assumed in all cases, unless a contrary intention be shown, that the partners intended that the partnership real estate should be treated as partnership assets, and therefore as personalty, so far as it may be necessary to pay the partnership debts, and the claims of the partners inter se; while the modern rule is that in order to convert it into personalty for purposes beyond these, or for all, there must be an agreement, either express or implied, to do so."] Flanagan v. Shock, Ky. Ct. of App., March 28, 1885; 6 Ky. Law Repr. 699.

-

21. PARTNERSHIP. [Real Estate.] — Rights of Partners inter sese in Respect of Partnership Realty not held in Firm's Name, etc.-Where the title to real estate used for partnership purposes is not in the firm, the presumption is that it is not firm property. In order to rebut this presumption, as between the partners, it must appear that it was paid for with the firm's money, or was by agreement actually brought into the common stock. A.,B., C., and E., co-partners trading as A., B., C. & Co. purchased as tenants in common a slate quarry which was not purchased with the firm's money, agreeing at the time that it should become partnership property, but never working it under the firm name, but under the name of A., B., C., D. & Co., and keep separate accounts from those of the other firm. They subsequently sold the property, giving a deed signed by A., B., C. & E., and took notes in