nothing in the publication justifies the inference that the plaintiff is therein charged with the crime of murder or abortion, or of being an accessory thereto before or after the fact.

The assignments of error are overruled, and the judgment is affirmed.

(239 Pa. 216)

(No. 1.) HURST et al. v. BRENNEN et al. (Supreme Court of Pennsylvania. Jan. 13, 1913.)

LIEF.

1. EQUITY (§ 39*)-DECREE-EXTENT OF RE-
Where a court of equity once acquires ju-
risdiction, it has power to settle the entire con-
troversy.

Dig. 88 104-114; Dec. Dig. § 39.*]
[Ed. Note.-For other cases, see Equity, Cent.

2. PARTITION (§ 83*)-DECREE-EXTENT OF
RELIEF ACCOUNTING.

Where, in a cotenant's action against his co-owners of a mining property, which they had long operated as partners for their common benefit, for partition and an accounting, it appears that the nature of the property will not permit of a partition, the court having acquired jurisdiction equity will decree a settlement of the accounts of the partnership.

decisions by the court; but such rulings are | judge that the imputations in the article did elsewhere in the act dealt with specifically. not specifically refer to the plaintiff, and that Thus, in section 1 it is provided that exceptions requested by counsel, to rulings upon the trial noted by the stenographer without allowance by the court, shall have the effect of exceptions "written out, signed, and sealed by the trial judge." And section 2 dispenses with the requirement of an allowance by the trial judge of exceptions to the charge and answers to points, if made by counsel before the jury retires; and provides that when noted by the stenographer, they shall "have all the effect of exceptions duly written out, signed, and sealed by the trial judge, at the time of the trial." If taken after the jury retires, the exceptions shall be "by leave of the court." The effect of sections 1 and 2 is merely to dispense with the requirement that exceptions shall be allowed by the court. They must still be taken by counsel, and noted by the official stenographer. Section 6 is evidently intended to apply to final decisions, or to such as appear as part of the record, by the action of the court itself, and not to rulings upon interlocutory matters which would formerly not have become part of the record, in the absence of an exception and a bill sealed by the court. As the motion to amend in this case was not made during the course of the trial, but afterwards, and as the decision of the court refusing to permit plaintiff to amend his statement appears in the proceedings, it was not, under the provisions of section 6 of the Act of May 11, 1911, necessary for the purpose of review of that decision to take any exception thereto. An inspection of the amendment, as offered, shows that it contains no allegation that the language of the publication charged the plaintiff with the crime of murder or abortion. Nor does it state any extrinsic facts from which such a charge against the plaintiff can be fairly inferred from the publication. It states that the Anti-Cruelty Home was the residence of plaintiff and of Mr. and Mrs. Kunz, and that they were the three officials about whom the article alleged that public suspicion was closing. But suspicion as to what? Not as to the crime of murder or abortion. The three persons named are referred to as treating Miss Reed as a companion and assistant, rather than as an inmate of the home. Towards the end of the article a serious imputation is made against Mr. Kunz, but his actions are not imputed to the plaintiff.

[Ed. Note. For other cases, see Partition, Cent. Dig. §§ 228, 229; Dec. Dig. § 83.*] 3. LIMITATION OF ACTIONS (§ 54*)-OPERA

TION OF STATUTE-OPEN ACCOUNT.

The statute of limitation was no bar to a ing property for an accounting, where there excotenant's action against his co-owners of ministed an open account between the parties and a duty to account at the commencement of the action.

of Actions, Cent. Dig. §§ 294-298; Dec. Dig. [Ed. Note. For other cases, see Limitation § 54.*]

4. APPEAL AND ERROR (§ 889*)-AMENDMENTS CONSIDERED AS MADE-AMENDMENT TO AN

SWER.

ty is entirely within the discretion of the court, Since an amendment to an answer in equiand will never be denied when justice demands it, the appellate court may treat an answer as amended, where necessary to a proper disposition of the case.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3621, 3622; Dec. Dig. § 889;* Pleading, Cent. Dig. § 1355.] 5. PARTNERSHIP (§ 97*)—Secret ProFITS-AC

COUNTING.

becoming interested in a business which con-
Where a partner makes secret profits by
trols the sale of the product of a mine owned
by the partnership, he must account to his co-
partners for such profits.

Cent. Dig. 88 146-151; Dec. Dig. § 97.*]
[Ed. Note. For other cases, see Partnership,
Elkin, J., dissenting.

We can see in the amendment nothing
which would relieve the court from the duty
of passing upon the construction and mean-
ing of the language of the publication as a
question of law. There can be no recovery
unless it appears that there was a specific
imputation against the person suing. After
considerable reflection on the subject, we
agree with the conclusion reached by the trial Company appeals. Affirmed.

Appeal from Court of Common Pleas, Westmoreland County.

Bill for partition and an accounting by Braden Hurst and another, for whom the H. C. Frick Coke Company was substituted, against John P. Brennen and another. From a decree for defendants, the plaintiff Coke

Argued before FELL, C. J., and BROWN, | selves. This bill for partition and for an MESTREZAT, POTTER, ELKIN, STEW- accounting was therefore filed. The defendART, and MOSCHZISKER, JJ.

in the settlements made by Rafferty & Donnelly, while they operated the works, from 1880 to 1888, as to profits realized from coal taken from the various tracts of land. Nor were the cost of improvements or the expenses of operation apportioned on the books of Rafferty & Donnelly among the different tracts. In June, 1888, the McClure Coke

ness of Rafferty & Donnelly, together with their assets and liabilities, and from that date until October 1, 1895, operated the works. On August 11, 1883, an account was opened on Rafferty & Donnelly's ledger, called "Disputed One-Seventh Interest in Union Coal & Coke Works," which account was continued by the McClure Coke Company, and on September 30, 1895, it showed a balance of $11,944.65, without including any interest thereon. Neither Neel, Stoner, Hurst, Rafferty & Donnelly, McClure & Co., nor the McClure Coke Company made claim to the fund represented in this account prior to the filing of the bill in this case, but it was set apart as representing the interest of Peter L. Shupe and his successor in interest, William J. Rainey. The only demand made for this fund before the bill in this case was filed was by Gilbert T. Rafferty, and he did not press his claim or assert it in any way in the proceedings before the master. In 1882, Rafferty & Donnelly, with one Ruby, formed a partnership under the name of McClure & Co., for the purpose of selling the output of Rafferty & Donnelly's works, including that of the Union Coke Works. This company sold the product of the latter concern from that date until 1888 at a profit which the master fixed at the sum of $21,640.82, and during the period from 1888 to

a 9-foot vein of coal underlying 84 acres and 13 perches of land in the same township, and in the year 1875 Schall conveyed his interest in the properties to his three cotenants. On the purchase of the Shupe tract the purchasers entered into a contract with Shupe, who retained an undivided one-fourth interest in the coal, for the construction of coke works. Under this contract 28 ovens were | Company, a corporation, took over the busierected on one of the original tracts owned by them, and 42 ovens were erected on the Shupe tract, a coal tipple was erected on the same tract, and the mine opening was located on the line between the properties. The business was conducted as the Union Coke Works. It was agreed between the parties that Shupe should receive one-seventh of the net profits arising from the operation of the entire properties in common; the remaining six-sevenths being divided among the other parties to the sale and contract. The business was conducted according to the terms of this agreement until 1878, and the net profits were divided into sevenths, of which Shupe received one part. In 1878 Shupe leased his undivided interest in the Union Coke Works to William J. Rainey, one of the defendants, and afterwards by deed, dated January 1, 1880, sold and conveyed to Rainey all his undivided one-fourth interest in the Shupe coal, together with all his interest in the plant known as the Union Coke Works with the equipment for the manufacture of coke, and assigned to him all claims and demands due the grantor from his copartners and cotenants. On January 15, 1880, Gilbert T. Rafferty and Charles L. Donnelly purchased from Hurst, Stoner, and Neel the undivided one-half of their interest in the Union Coke Works. After this purchase and until Sep-1895, while the McClure Coke Company were tember 30, 1895, the business was conducted according to the terms of the original contract, the net profits being divided into seven equal shares, three shares being paid to Rafferty & Donnelly, one share each to Stoner, Neel, and Hurst, and one share being placed in a separate account, known by various names, but which remained intact, first in the hands of Rafferty & Donnelly, then of McClure & Co., and latterly in the hands of the McClure Coke Company. On June 28, 1895, John P. Brennen purchased from Neel and Stoner their undivided interests in all the properties connected with the Union Coke Works, with their appurtenances, and purchased all rights and claims of Neel to profits due to him from the McClure Coke Company, or from Rafferty & Donnelly, up to and including June 28, 1895. On or about January 1, 1885, the other parties in interest, including Rafferty & Donnelly, the then operators of the works, made a settlement with Rainey, paying him one-seventh of the net profits of the Union Coke Works. The coal underlying all the tracts was always operat

operating the works, the same parties sold the product at a profit, as found by the master, of $21,799.99. The master finds that the business of the selling agency as thus carried on by McClure & Co., was in fraud of the other partners of Rafferty & Donnelly, and of the McClure Coke Company, and that the profits realized as above, with interest thereon, should be credited to the Union Coke Works. The settlements made by the other parties in interest with Shupe prior to the sale to Rainey, and with Rainey after his purchase, and up to August, 1883, were based upon a division of the net profits of the business of the Union Coke Works into sevenths. After October 1, 1895, the McClure Coke Company made a further settlement with Rainey on the same basis of oneseventh of the net profits. This left a period from August, 1883, to August, 1895, for which no settlement was made, in so far as Rainey's interest in the Union Coke Works was concerned. The master finds as facts that the sum of $11,944.65 contained in the special account, with interest thereon, was due to

Company, together with one-seventh of the amounts to be credited to the Union Coke Works on account of the profits arising from sales by McClure & Co. during the period from 1883 to 1895, with interest. These amounts, together with the one-fourth of a small balance set apart to cover an expense account when the mines were idle, aggregate $35,688.03.

taining the amount due, it was held, as stated in the syllabus, that "this was a continuing admission of liability to account, so as to suspend the running of the statute of limitations."

In the present case the plaintiffs admitted in the bill that they were liable to account to defendants, and professed their willingness to do so, and they acknowledged that money was due, and they asked that a master be appointed and an accounting had, in order to determine the amount due. In the face of this admission of indebtedness, they could not ask that the bar of the statute be set up. They came into court admitting liability and asking the court to determine the amount thereof. They set forth the fact that a fund of $11,944.65 had been set apart in a special account until its ownership could be determined. The additional sums which were awarded by the master to appellees, on account of the profits made by McClure & Co., necessarily came into the account in the process of ascertaining the value of defendant's interest in the profits of the business. In the case of Tully v. Felton, 177 Pa. 344, 36 Atl. 285, cited by the master, it was held that, as long as the matter of accounting between the parties to a profit-saving agreement remains an open one, the statute of limitations will not run.

[1, 2] Counsel for appellant suggest that, as the bill in this case was filed for partition and accounting among cotenants, the master and the court below were without authority to settle the accounts of the partnership. It is apparent, however, that the relations between the parties as cotenants of the land and as partners in the conduct of the business were so involved with each other that it would have been impossible to determine them separately. The principle is well settled that a court of equity having once acquired jurisdiction has power to settle the entire controversy between the parties. In McGowin v. Remington, 12 Pa. 56, page 63 (51 Am. Dec. 584), Mr. Justice Bell said: "When once a court of equity takes cognizance of a litigation, it will dispose of every subject embraced within the circle of contest, whether the question be of remedy or of distinct yet connected topics of dispute. If the jurisdiction once attaches from the nature of one of the subjects of contest, it may embrace all of them; for equity abhor multi-lant point out that defendant Rainey denied plicity of suits." In Myers v. Bryson, 158 Pa. 246, page 255, 27 Atl. 986, page 989, Mr. Justice Mitchell said: "The second prayer [of the bill] is for an account in order that a final settlement of said estate may be made, and your orators receive whatever they may be entitled to of the same.' This is substantially a prayer for a termination of the trust, settlement, and distribution. But even if this had been wanting, a court of equity having taken jurisdiction of the case up to this point, and finding it ready for final adjudication, would ordinarily go on under the prayer | for further relief, and make an end of the litigation."

[4] In the present case counsel for appel

in his answer that he was a partner in the Union Coke Works, and that instead of a one-seventh interest in the whole operation he claimed to be entitled to one-fourth of the proceeds of the operation on the Shupe tract. If necessary, however, to a proper disposition of the case, the answer in this respect may be treated as amended. In Leach v. Ansbacher, 55 Pa. 85, the rule as set forth in the syllabus is as follows: "An amendment to an answer is entirely within the discretion of the court, and will never be denied when justice demands it." The issues involved in this case have been tried at great length, upon their merits, before the master, and we [3] Whether the parties to this suit be can see no good reason why, if an amendment regarded as cotenants or as partners, in be necessary to sustain the claim of the deneither case can the statute of limitations fendants, as it is clearly established by the properly be pleaded. Authority for this evidence, we should not treat the answer as statement is found in McGowan v. Bailey, amended so as to make that evidence clearly 179 Pa. 470, 36 Atl. 325, where it was held admissible. The title to the property was that the cotenants of a coal mine, who had just as Rainey stated in his answer, and his worked it for many years and had received counsel averred upon the argument that he all the proceeds, were trustees for the share would have been willing to accept one-fourth of another cotenant, who had not been paid of the results from the coal mined from the any of the profits, and had made no previous Shupe tract as his share of the profits. But demand for an accounting, and it was de- the conduct of the parties had rendered imtermined that they could not set up the plea possible the ascertainment of the value of of the statute as a bar to the right of their that interest. The master found that under cotenant to an account. And in Shelmire's the original partnership profit-sharing agreeAppeal, 70 Pa. 281, where the partner sought ment the parties dealt with the coal, not as to be charged had frequently acknowledged real estate, but, when severed from the fee, a liability to account, and had agreed to two as personalty, the profits from which were amicable references for the purpose of ascer- to be divided into sevenths. And further, as

1895, the McClure Coke Company operated the coke works and manipulated the sales in such a way that further secret profits were made during that period, for which that company upon its own account was chargeable with secret profits wrongfully withheld from the other partners in the Union Coke Works. Afterwards the McClure Coke Company became merged in and consolidated with the Frick Coke Company, which then, as a matter of law, became responsible for all the liabilities of the McClure Coke Company. The law authorizing a merger of corporations provides that all debts, duties, and liabilities of each of the constituent corporations shall attach to the new corporation. We are convinced that the findings of fact by the master, as affirmed by the court below, were fully warranted by the evidence, and in the application of the law thereto we see no error.

The assignments of error are overruled, and the decree of the court below is affirmed.

was demonstrated in the argument of counsel for appellees, the difference in final results between an accounting for one-fourth of the proceeds of the operation on the Shupe property alone, and for one-seventh of the whole operation amounts to comparatively little. The statement submitted in the argument shows that at the end of the 22 years the mining in the two properties was so conducted that the Rainey one-fourth interest was within an acre and a half of the exact proportion which would entitle him to receive the one-seventh of the entire profit upon the whole transaction. The evidence is undisputed that Rainey's predecessor in title, Shupe, was the owner of one-fourth of the coal in that tract, and was entitled to one-fourth of the profits derived from its manufacture into coke, and its sale as such. But it appears just as clearly that, in pursuance of a plan by which the property in which he was interested might be combined with the adjacent property in a single plant, for the purpose of operating to the best advantage, he agreed to accept in payment ELKIN, J. (dissenting). According to my of, or in lieu of his right to, one-fourth of the view the conclusions reached in this case are profits arising from the use of the coal from erroneous in several particulars. The pleadhis own tract one-seventh of the profits real-ings have been disregarded, and appellant ized from the entire plant. He certainly has been made to answer for the faults of had the power to make such an agreement, individuals with whom it had no connection, and the benefit of the contract passed to his and from whose acts it derived no benefit grantee, Rainey, and thereafter for years whatever. The bill averred that the parties settlement was made by the operating cowere tenants in common, and the answer adtenants of the Union Coke Works with both mits the averment. The bill prayed for parShupe and Rainey on the basis of their inter- tition and an accounting between tenants in est in the profits being a one-seventh. This common, while the master treated it as a bill contract, recognized by all parties in interest for an accounting between partners and for so long a period of time, was most prop- opened the door so wide as to require appelerly adopted by the master in his effort to lant to account for secret profits made by ascertain the value of the respective interests Rafferty & Donnelly, as partners, between in the fund now to be distributed. 1883 and 1888, many years before appellant had anything to do with the operation of the plant, and at a time when Rafferty & Donnelly had no partnership relation with the Frick Coke Company or with the McClure Coke Company. No one has undertaken to explain satisfactorily how this thing can be legally done.

Complaint is made of the large amount found by the master to be due to appellees. But the amount was confined to profits actually realized, and to interest thereon; and the size of the award is due in considerable measure to the interest which has accrued upon the long-deferred payments, which should have been made when due by the operating cotenants and partners. They cannot therefore justly complain of the size of the bill which was so greatly increased by their own delay. It is true that the Frick Coke Company had nothing to do with these transactions as they occurred. But through processes of merger it has assumed the liabilities of the companies to which it succeeded, and that have been merged with it.

[5] The master has found as a fact that Rafferty & Donnelly and McClure & Co. were chargeable with secret profits for which they should account to their partners. He further finds that in June, 1888, the McClure Coke Company, a corporation, took over the business of McClure & Co. and Rafferty & Donnelly, together with their assets and liabili

There is not a single averment in the bill upon which to predicate a partnership relation, while, on the other hand, there are several distinct averments that the parties were tenants in common, and that the accounting should be made upon this basis, Rainey himself answered that he was not a party to any agreement by which the land involved in the partition proceeding was to be used and operated in a partnership relation in conjunction with other property. He also averred that he is entitled to one-fourth of the proceeds arising from the profits made in the manufacture of coke, and this upon the theory that he was a tenant in common. In other words, he averred in his answer that he was the owner, as tenant in common, of one-fourth of the land described in the bill,