Crum v. State. taken by the accused. It is only necessary to state the third instruction, since that announced the law more strongly against the defendant than the first. It is as follows: "If death ensues from a wound given in malic, but not in its nature mortal, but which being neglected or mismanaged, the party dies, this will not excuse the party who gave it, but he will be held guilty of murder, unless it clearly and certainly appears, either by the evidence offered on the behalf of the State or the defendant, that the deceased's own neglect and want of care, and not the wound itself, was the sole cause of his death; for if the wound had not been given the party had not died." In M Beth v. State, 50 Miss. 81, an instruction practically the same as the one here given, in the view in which it was considered by the court, was declared to be erroneous. In that case the facts as given by the court were, that a dangerous but not necessarily fatal wound in the abdomen had been inflicted, the cut penetrating so deep that the entrails protruded. One Patrick, not a physician, had administered chloroform, replaced the bowels, and sewed up the wound. The physician who subsequently attended the wounded man testified that Patrick's treatment was not good, saying that the wounded man died about sixty hours after the wound was inflicted, as he supposed, from inflammation of the bowels; that in his opinion death was caused by the wound, and that wounds in the abdomen were dangerous but not necessarily fatal. On these facts the court said: "If there be misgovernment on the part of the medical attendant, from ignorance or inattention, this would form no exculpation if the wound was mortal. Arch. Cr. Prac. and Plead. 22. But if the wound were merely dangerous, and the bad treatment the proximate and immediate cause of the death, the result would be different." For the proposition that for a dangerous wound resulting in death from mismanagement, the party inflicting could not be held liable for murder, no authority is cited either by the court or by counsel in that case. Nor has counsel in his brief in the case now before us cited one, nor has our own investigation discovered that there are any. On the contrary, the decisions seem to be uniform and numerous in support of the instruction given by the court below, which is almost a literal copy of the law as given by Greenleaf on Evidence, vol. 3, § 139. Delk v. State. We have examined many of the cases cited by Greenleaf in support of the text, and others may be found in Roscoe's Cr. Ev. 717, 718 and 719. As we have said, they support the instruction given in this case, and so far as we are advised are in conflict with no other case than that of McBeth v. State. The principle of these cases is that one who maliciously inflicts a serious injury upon another, from which injury, as the mediate but not immediate cause, he dies, is responsible for the death. It is a salutary rule, necessary for the protection of society by the punishment of offenders, and ought not to be departed from. McBeth v. State, is overruled in so far as it announces a different rule, and the judgment of the lower court is affirmed. Judgment affirmed. DELK V. STATE. (63 Miss. 77.) Criminal law - larceny - lucri causa - asportation. The prisoner went secretly and unlawfully to the stable of another, led therefrem a jack belonging to the latter, and when fifteen or twenty feet from the door of the stable, killed the jack and left it lying on the owner's premises. Held, larceny.* ONVICTION of larceny. The head-note states the facts. CONVICTION J. P. Walker, for appellant. T. M. Miller, attorney-general, for State. ARNOLD, J. There is no error in the instruction for the State, and the fifth instruction asked by appellant was properly refused. The doctrine is well settled in this State that it is not necessary to constitute larceny that the taking should be lucri causa. A fraudulent taking and removal of the personal property of another with intent to wholly and permanently deprive the owner of the Jame is larceny. Warden v. State, 60 Miss. 638; Hamilton v. State, 35 Miss. 214; 2 Bish. Crim. L., § 758; Williams v. State, 52 Ala. 411. It was not necessary that the animal stolen should have been removed from the premises of the owner. To remove him with *See Wilson v. State (18 Tex. Ct. App. 270), 51 Am. Rep. 309, and note, 312. Hanover National Bank v. Klein. the requisite felonious intent from one part of the premises to another, or from the spot or house where he was found, was a sufficient asportation. 2 Bish. Crim. L., §§ 794, 806; 3 Greenl. Ev., 154. On the facts shown it was not error to overrule the motion for a new trial. Judgment affirmed. HANOVER National Bank v. Klein. (64 Miss. 141.) Partnership— payment of individual debt from firm assets — rights of creditors. A member of an insolvent firm may, with the consent of his partner, use the assets of such firm to pay premiums on a policy of insurance on his life for the benefit of his wife, to whom he is in good faith indebted, and partnership creditors cannot set aside the transaction unless they show fraud. BILL ILL to subject life insurance policies to plaintiff's claim. The head-note shows the point. The defendant had judgment: Shelton & Crutcher, Birchett & Gilland and J. D. Gilland & A. B. Pittman, for appellee. ARNOLD, J. It is but the reiteration of well-settled principles, by no means peculiar to Mississippi, to affirm that the right of copartnership creditors to have assets of the firm applied first to the payment of firm debts is a rule of administration adopted and exercised only by courts of equity when they are called upon to administer the affairs of a partnership, and that the equity of firm creditors in this behalf is a derivative one, growing out of the right of the partners as between themselves to do the same thing, and that if the partners for any cause could not enforce such right as between themselves, the creditors of the firm cannot do so. Schmidlapp v. Currie, 55 Miss. 597; s. c., 30 Am. Rep. 530; Loeb v. Morton, 63 Miss. 280; Case v. Beauregard, 99 U. S. 119; Fitzpatrick v. Flannagan, 106 U. S. 648. In this view of the law, the decree below is readily affirmed. Appellants had no lien on the funds of the firm sought to be Hanover National Bank v. Klein. reached by the bill, and these funds had been converted by John A. Klein to his own use, with the knowledge and consent of his partner, before the bill was filed. These funds therefore did not then belong to the partnership, and neither of the partners could at that time have insisted that they should be applied to the satisfaction of firm debts. The equities of the partners as to the particular funds had been extinguished by their joint act, and consequently the derivative equities of creditors were at an end. There was nothing upon which the equities of creditors could then operate, and no case for the application of the rule invoked, unless the disposition of the funds was rendered invalid as to creditors by the alleged insolvency of the firm or the fraud of the parties. There is no testimony as to the insolvency of John A. Klein or the firm until the failure in November, 1883. It is true that the insolvency of both prior to that time is alleged in the bill upon information and belief, but this is denied on information and belief in the answer of Mrs. Klein, and appellants were thereby put upon proof of the allegation. Whatever may be the value of such answer as evidence, it at least required proof by appellants. 1 Dan. Ch. Pl. and Pr. 814, note 7; 846, note 1; Buttrick v. Halden, 13 Metc. 555; Dugan v. Gittings, 3 Gill. 138; s. c., 43 Am. Dec. 306; Drury v. Conner, 6 Har. & J. 288; Watson v. Palmer, 5 Ark. 501; Lawrence v. Lawrence, 21 N. J. Eq. 317. If it be said that the matter of the insolvency of the firm may fairly be presumed, without a charge to that effect, to have been in the personal knowledge of George M. Klein, who adopted the answer of Mrs. Klein, and that the insolvency, by such answer, was admitted by him, the obvious reply is, that his answer is not evidence against his co-defendant. She had not adopted or referred in any manner to his answer as being correct, nor was she so connected with him as to be bound by his confessions, admissions or declarations, and the general rule therefore prevailed that the answer of one defendant is not evidence against another. 1 Dan. Ch. Pl. and Pr. 841, note 7; Hardesty v. Jones, 10 Gill. & J. 404; Blakeney v. Ferguson, 14 Ark. 640; Christie v. Bishop, 1 Barb. Ch. 105; Salmon v. Smith, 58 Miss. 399. But the insolvency of John A. Klein, or the firm, or both, if shown, would not, on the facts of record, change the rights of the parties. An individual debtor, whether solvent or insolvent, may unquestionably, under the laws of the State, make preference among Sangslaff v. Stix. his creditors, or pay one or more, to the exclusion of the rest, if it is done in good faith, and without the reservation of any benefit to himself, or make bona fide sale of his property without violating the legal rights of creditors, and a partnership or the members thereof, whether solvent or insolvent, may do the same. The law imposes no restrictions on the power of a partnership or its members as to the acquisition or disposition of property which are not common to other persons. Schmidlapp v. Currie, 55 Miss. 597; s. c., 30 Am. Rep. 530; Sigler v. Knox Co. Bank, 8 Ohio, 511; Case v. Beauregard, 99. U. S. 119; Roach v. Brannon, 57 Miss. 490. The application of the funds of the partnership by John A. Klein, with the consent of his. partner, to the payment of premiums on insurance for the benefit of his wife, to whom, it is admitted, he was largely indebted, was prima facie valid, and it devolved upon appellants to show that it was fraudulent. Kimball v. Thompson, S. 119; Parkhurst v. this, and there was no 13 Metc. 283; Case v. Mc Graw, 2 Cush. 134. cause for relief. Beauregard, 99 U. S. shipped goods by railroad to R. at A. station. When the goods arrived there R. paid the freight charges, receipted for the goods, and told the company's agent that he would leave the goods with him until he could send for them. Thereupon L., a creditor of R., attached the goods. Afterward the agent received notice from S. not to deliver the goods to R. Held, that it was too late for S. to exercise the right of stoppage in transit. (See note, p. 51.) LAIMS to personal property. The head-note states the facts. CLAIME Sweatman, Trotter & Trotter, for appellant. J. W. Pinson, for appellees. ARNOLD, J. The right of stoppage in transitu is favored in law, and may be exercised at any time until the goods have come into the actual or constructive possession of the buyer, or as otherwise VOL. LX-7 |