Partners in trade have authority, as regards third persons, to bind the firm by promissory notes or bills of exchange, for it is in the usual course of mercantile transactions so to do; and this authority is sanctioned by the custom and law of merchants, which is part of the general law of the land. The liability of a firm for the frand of one of its members in procuring money by false pretences is sustained by several authorities, and proceeds upon the ground that where one of two innocent persons must suffer by the acts of a third person, he shall suffer who has been the occasion or cause of the confidence reposed. The same principle applies to the case of negotiable securities fraudulently issued by one of several partners (see cases collated in Johnson v. Lee, 30 St. R. 392; S. C., 10 N. Y. Supplt. 9). But the rule does not apply to lawyers, doctors, and others not engaged in business as traders.

Therefore, in an action against a law firm or a medical firm, it is not enough to prove that the note or bill sued upon was signed by one of its members, the plaintiff must go further and prove one of four things: (1) That the partner who did not sign expressly authorized the act. (2) That he ratified it afterwards. (3)

That the firm as such got the benefit of the proceeds, or (4) That by some prior acts of his he is estopped from disputing the authority assumed. This results from the want of implied power of one copartner to bind the other in any but a trading partnership. Chief Justice Denman, in Hedley v. Bainbridge (3 Q. B. R., at p. 321), said: "There is no custom or usage that attorneys should be parties to negotiable instruments; nor is it necessary for the purpose of their business." (See also Byles on Bills, 6th ed., by Sharswood, Mary, p. 45, and cases cited.)

This would seem to be enforcing the old adage that the "shoemaker must stick to his last," is equally sound in logic, and as firmly grounded in propriety. The doctrine may seem novel on first impression, but it has been repeatedly followed, and may be accepted as the law of to-day. It will not disturb the tranquility of any, but may quieten the nerves of some who have been ambitious enough to enter co-partnerships more with a view to professional advantage, than to learn the discomforts which frequently follow such relations when conducted upon mercantile lines.

PERSONAL PROPERTY (continued). In a recent Indiana case it is held that the bodies of the dead belong to the surviving relatives, in the order of inheritance, and they, and not the executor or administrator, have the right to the custody and burial of the same. (Reinhau v. Wright, 125 Ind. 536.)

P. 548. A leading case upon the subjeat of gifts causa mortis is Basket v. Haskell, 107 U. S. 602. This holds that such a gift must, during the life of the donor, take effect as an executed and complete transfer of his possession of the thing and his title thereto to the donee, although the right of the donee is subject to be divested by the actual revocation of the donor, or by his surviving the apprehended peril, or by his outliving the donee, or by the insufficiency of his estate to pay his debts. If by the terms and conditions of the gift it is to take effect only upon the death of the donor, it is not such a gift, but is available, if at all, as a testamentary disposition.

It is sometimes difficult to determine whether a particular disposition of personal property is to be deemed a gift or a trust. "It is now well settled," says a recent case, "that what was clearly intended as a gift, but is imperfect as such, cannot be given effect by considering it a declaration of trust. There is no principle of equity which will perfect an imperfect gift, and a court of equity will

not impute a trust where no trust was contemplated." (Smith's Estate, 144 Pa. 428.)

As to what is sufficient to constitute a

delivery, see Kilpin v. Ratley [1892], 1 Q. B. 582.

CRIMINAL LAW.

P. 848. A crime may be defined as "any act done in violation of those duties which an individual owes to the community, and for a breach of which the law has provided that the offender shall make satisfaction to the public." Crimes are divided into offenses mala in se (acts wrongful in themselves), and offenses mala prohibita (acts wrongful because prohibited by statute). And though it is common, in modern times, to define crimes of both these classes by statute, still this has not obscured the distinction. If an offense be malum in se, it is considered that every man's moral sense should enable him to know that the act was wrongful, though he had no knowledge as to the statute prohibiting it. As to an offense malum prohibitum, as e. g., taking fish at a time of year when this was forbidden by statute, this could not, of course, be true.

The criminal law of most States is now, in the main, statutory, though the common law doctrines upon this brauch of law may still be deemed in force so far as the statutes are not sufficiently comprehensive to cover the whole field of crimes. In some States, however, criminal law has

been made wholly statutory. But even in these States the definition or explanation of terms used in the statutes may require a resort to the principles of the common law respecting crimes.

There are no common law crimes against the United States. It is necessary that a sufficient statutory authority should exist for declaring any act or omission a criminal offense. (U. S. v. Eaton, 144 U. S. 677.)

Crimes are divided into felonies and misdemeanors. A felony by the common law was any offense punishable by a forfeiture of lands, or goods, or both. Other offenses were misdemeanors. In most of the States and Territories of this country a felony is a crime punishable by death or by imprisonment in a State prison, while other offenses are misdemeanors. In Mackin. U. S., 117 U. S. 353, a list of the States and Territories is given in which this distinction is established. In some States, however, as in Rhode Island, there is no such rule, and it is held, therefore, that in an indictment the word "feloniously" should be used in all cases where the offense charged was felony by the common law, and that in all other cases this word is not essential in the indictment. (State v. Murphy, 17 R. I. 698; see People v. War, 20 Cal. 117.)

P. 861. As a general rule, a crime involves both a wrongful intent and a wrongful act. (People v. Flack, 125 N. Y. 324.)

This union may be of a threefold kind, viz.: (1) The intent may be wrongful and contemplate the very act committed, both as to its nature and the person or property affected thereby; as where one intends to murder A or rob B, and actually does murder A or rob B.

(2) The intent may be wrongful but contemplate a different act from the one committed, or an act of the same kind affecting a different person or other property than are actually injured; as where one only intends to commit a burglary, but unintentionally causes the death of the house-owner by blows inflicted in the endeavor to escape, thus becoming chargeable with murder; or where one intends to shoot A, but by mistake shoots and kills B.

(3) The intent may be really innocent, but contemplate an act which has been declared a crime by statute; as where one shoots game birds at a season of the year when this is prohibited by statute, being ignorant of such statute. This class of cases includes those offenses cailed mala

On

prohibita. As, however, every man is presnmed to know the law, it is presumed that the intent in these cases is wrongful, though it be in reality innocent. grounds of public policy, also, offenses of this kind must be punished, though the offender were ignorant that his act was wrongful and prohibited.

An attempt to commit a crime is itself a crime. An attempt consists of (1) the intent; (2) a direct ineffectual act towards its commission; and that act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation. Comm., 95 Pa. 318.) Thus if one puts (Hicks v. Comm., 85 Va. 223; Stabler v.

his hand in another's pocket to steal a purse, but is prevented before his hand touches the purse, his act would be an attempt. It is now generally held, also, that this would be an attempt, though it turned out that there was no purse in the pocket; some former English cases were,

however, to the contrary. (People v. Moran, 123 N. Y. 254.)

An attempt differs from preparation. Thus the purchase of a gun with intent to commit murder, or the purchase of poison with the same intent, does not constitute an indictable attempt. The act is only in the nature of preliminary preparation. (People v. Murray, 14 Cal. 159; Supple v. State, 46 .N. J. L. 197; Patrick v. People, 132 Ill. 529.)

Solicitation to commit a crime is generally held to be an indictable attempt, though it be ineffectual and the crime is not committed. (Comm. v. Flagg, 135 Mass. 545; but see Stabler v. Comm., 95 Pa. 318.)

Ignorance of law is no excuse for criminal acts. Even foreigners resident in a country not their own are presumed to know its law and are punishable for its violation. (Reg. v. Barronet, 1 E. & B. 1; U. S. v. Anthony, 11 Blatch. 200; Grum bine v. State, 60 Md. 355.)

Ignorance of material facts, on the other hand, is, in general, a good defense, if it be not attributable to negligence or default, or an intentional disregard of means of information. (Rex v. Levett, Cro. Car. 538; a leading case is Queen v. Tolson, 23 Q. B. D. 168.) If, however, a statute should expressly or impliedly make those who violate its provisions criminally liable, whether they were or were not ignorant of material facts involved in the offense, ignorance of the facts would then be no defense; as if, e. g., selling liquor to a minor should be absolutely prohibited whether the dealer knew or did not know that the purchaser was a minor. (Comm. v. Emmons, 98 Mass. 6; see Comm. v. Julius, 143 Mass. 132; People v. Mahoney, 41 Hun 26; Queen v. Prince,

L. R., 2 C..C. R. 154.) Whether such an absolute prohibition shall be read into a statute by implication is a matter about which the courts of different States differ materially. Massachusetts goes very far in supporting such implications. (Comm. v. Thompson, 11 Allen 23.) Some of the States have refused to adopt such an extreme position. (Adler v. State, 55 Ala. 16; Taylor v. State, 107 Ind. 483; Farrell v. State, 82 O. St. 456.)

Carelessness or negligence may be a means of committing crime, as e. g., homicide. (R. v. Walker, 1 C. & P. 320.) It is considered as equivalent to a direct criminal intent; for, as has been well said, "there is little distinction between a positive will to do wrong and an indifference whether wrong is done or not." (Bishop, Cr. Law, i. § 313.)

P. 863. As to the liability of infants for crime, see Angelo v. People, 96 Ill. 209 (murder case, child of eleven); State v. Fowler, 52 Ia. 103; State v. Adams, 76 Mo. 355.

P. 865. In some recent decisions "irresistible impulse" is recognized as a good defense, although the accused knew the wrongful nature of the act he committed. (Flake v. State, 121 Ind. 433; Grubb v. State, 117 id. 277.) Other late cases are to the contrary. (State v. Miller, 111 Mo. 512; State v. Scott, 41 Minn. 365; see Hornish v. People, 142 Ill. 620.;

P. 86%. For cases in which delirium tremens was regarded as a sufficient defense, see U. S. v. McGlue, 1 Curtis 1; U. S. v. Drew, 5 Mason 28.

Evidence of intoxication may also be given to reduce the grade of the crime charged against the defendant, by showing that his mind was not in a condition to form the intent involved in the higher

grade of the crime. (Crosby v. People, 187 Ill. 325; Aszman v. People, 123 Ind. 347; Comm. v. Creary, 148 Pa. 26.)

It has lately been held in Wisconsin that it is competent for the accused to show that at or about the time the crime was committed he was in such a physical condition as to render it impossible that he committed it; as if, e. g., a larceny had been committed and the accused could show that at the time he had been temporarily prostrated by drunkenness so as to render it highly improbable that he could have been present at the place where the crime was committed, or, if able to be present, that he could have done what the evidence shows was done by those who committed the larceny. (Ingalls v. State, 48 Wis. 647.)

P. 873. "To constitute one a principal in the second degree, he must be present at the commission of it, but he need not be so near as to be an eye and ear witness of the criminal act. His presence may be constructive, as when it is shown that he acted with another in the pursuance of a common design; that he acted at one and the same time for the fulfillment of the same preconcerted end and was so situated as to be able to give aid to his associate, with a view to insure the success of the common enterprise. A waiting and a watching at a convenient distance is enough; as if, in a case of larceny, he be placed where he may learn of the whereabouts and movements of the custodian of the property, and be prepared to lure him away, or to retard him, or to give timely warning of his approach." (McCarney v. People, 83 N. Y. 408.)

P. 873. Where three persons undertook to commit a burglary and one of them shot

a clerk in the building entered, all three were held chargeable with murder, "if there was a general resolution against all opposers and to resist to the utmost all attempts to detain or hold in custody any of the parties." This general resolution of the confederates need not be proved by direct evidence. It may be inferred from circumstances; by the number, aims, and behavior of the parties at or before the scene of action. (Ruloff v. People, 45 N. Y. 213.)

So if several persons are with firearms holding a forcible possession of land claimed by others, all are guilty of a murder committed by any one of them therein. (Bishop, Cr. Law, i. § 633.)

But where one of several wrongdoers commits a crime wholly independent, or outside the scope of the general purpose, he only is liable therefor; as where poachers attacked a gamekeeper and left him senseless, and afterwards one of them returned and stole his money. He alone was liable for the robbery. (Rex v. Hawkins, 3 C. & P. 392.)

P. 939. Murder, at common law, is killing with malice, while manslaughter is killing without malice. Malice thus forms the distinguishing clement. This word denotes, in general, evilmindedness; as applied in homicide, it signifies a "depraved heart regardless of human life." There may be intent to kill without malice; as, e. g., where a husband kills his wife or her paramour when he detects them in the commission of adultery. There may also be malice without intent to kill; as, e. g., where a man beats his wife or child with savage cruelty and thus causes their death, though he did not intend to kill them. The law will hold him responsible for the natural and prob