Partnership--Contract—Power of Majority of Partners.—Five persons agreed to cut and pack, for sale, a quantity of ice, and after deducting all expenses from the proceeds of sale, to divide the residue in equal shares. Held: 1. The agreement created a copartnership between the parties. 2. A majority of the members of the partnership can make a valid sale of the property belonging to the firm without the consent of the minority, when there is no fraudulent combination to injure or oppress the minority. Staples v. Sprague. Maine Sup. Jud. Ct., Dec. 27, 1883. 17 Rep. 243.

Promissory Note-Demand-Absent Joint Maker.-Where a joint maker of a promissory note at its execution and maturity does not reside in the state where payment is to be made, presentment as to him is excused. Luning v. Wise. Cal. Sup. Ct., Dec. 29, 1883. 17 Rep. 234.

Promisory-Statute of Limitations— Fraudulent Concealment of Cause of Action.-When a plaintiff has knowledge in time that a cause of action exists, he is thereby put upon inquiry as to the amount of the claim, the time and manner of its alleged payment, and of all material circumstances connected with the transaction. If he neglect such inquiry, be cannot set up fraudulent concealment of the cause of action as a reply to the plea of the statute of limitations. Sankey v. McElevey. Pa. Sup. Ct., Nov. 15, 1883. 41 Leg. Int. 85.

Railroad-Negligence-Evidence.-1. Where defendants' railway cars had be overturned near the side of a highway crossing the track, and the plaintiff's horse had been frightened by them the day after, it was error to permit the plaintiff to show that the cars were not removed for several days afterwards. The inquiry should be limited to the time of the plaintiff's injury. Neglect of removing after that time could not have caused his injury. 2. In such a case it was error to adinit evidence in regard to th char icter of the crossing as respects danger if a horse should scire at an obstruction. The defendant company were not responsible for the condition of the turnpike road. 3. It was error for the court to instruct the jury "that the defendant was in law bound to be possessed of the proper appliances by which it could at once remove the overturned cars, if their position was an obstruction to the highway or dangerous to persons pissing by. * * That if the company sul

fered its cars to remain in that upturned position, it was guilty of culpable negligence." The jury should have been instructed that the defendant wis entitled to a reasonable time, under all the circumstances, to rem ve the obstruction. 4. A min is as much bound to avoid a known danger on a public highway as anywhere else, and if he voluntarily and unnecessarily takes the risk he is precluded from recovery. Railroad Co. v. Taylor. Pa. Sup. Ct., January 7, 1834. 41 Leg. Int. 84.

Sunday Laws-Right to Recover for Injuries on Sunday.—The fact that a person injured on a street railway was traveling for pleasure on Sunday, does not affect his right to recover. Knowlton v. Milwaukee City Ry. Co. Wis. Sup. Ct., Jan. 8, 1884. 18 N. W. Rep. 17.

PRESUMPTION AS TO WHICH OF TWO FIRMS OF SAME NAME GAVE PROMISSORY NOTE-SECONDARY EVIDENCE TO PROVE

CONTENTS OF BOOKS OF ACCOUNT.

(Ohio Supreme Court Commission. February 5, 1884.)

FOSDICK V. VAN HORN.

1. If there are two firms of the same name in the same community, each consisting of the same persons, but each engaged in different kinds of business, one of which contains a dormant partner and the other does not, and suit is brought on a promissory note for borrowed money bearing the signature of the common firm nanie, the presumption is, that it is the note of the firm not containing the dormant partner.

2. The plaintiff, to recover against the dormant partner, must prove, either, that the money for which the note was given, was borrowed on the credit of the firm in which the dormant partner was interested, or, that when obtained it was used in the business of or for the benefit of that firm; and the fact that the money was borrowed on the credit of that firm, may be proved by representations to that effect made by the ostensible partners at the time of the transaction, or it may be proved by circumstances.

3. Secondary evidence is admissible to prove, that books of account do not contain certain entries, the books being out of the state, and beyond the jurisdiction of the court.

ERROR to the District Court of Hamilton County.

The executors of the last will and testament of Samuel Fosdick, who deceased since the filing of the petition in error, seek to reverse the judgment of the District Court of Hamilton County, which affirmed a judgment of the court of common pleas, of said county, wherein Cornelius Van Horn was plaintiff,

and Samuel Fosdick and Levin B. Lewis, surviving partners of the firm of Lewis & Eichelberger, were defendants.

Cornelius Van Horn, plaintiff, in his petition, which was filed June 9, 1875, alleges, that on the twenty-first day of March 1868, the said defendants, Levin B. Lewis, and Samuel Fosdick, and one William Eichelberger (deceased) were partners in business in the city of Lawrenceburgh, in Indiana, and had been partners there in the flouring mill business for many years before that time, and continued so in partnership for a long time after that date.

That on the twenty-first of March 1868, the said defendants, by their partnership name and style of Lewis & Eichelberger, at said Lawrenceburgh, made, executed and delivered to said plaintiff, their certain promissory note, whereby they promised to pay to the order of said plaintiff on demand, after said date, the sum of $1,000, with ten per cent. interest thereon, for value received, without any relief from valuation or appraisement laws.

The defendant, Samuel Fosdick, in his answer, avers that he never heard of the claim upon the note sued on until May 1, 1875, when plaintiff presented it to him. In his answers to interrogatories, as well as in his answer, he expressly denies that he was a partner in the firm of Lewis & Eichelberger at the time the note sued on was given; and in his answers to interrogatories, says, that the contract he had with that firm was not intended to make him a partner. The issues thus made up, were tried by the court, and found in favor of the plaintiff, and Samuel Fosdick was adjudged liable to the plaintiff on the note of Lewis & Eichelberger, in the sum of $975.53.

A motion for a new trial was duly filed, assigning for grounds:

1. That the finding and judgment of the court is not sustained by sufficient evidence.

2. That the finding and judgment upon the evidence is contrary to law.

3. That the court erred at the trial of the cause in excluding evidence offered by defendant.

4. That the court erred at the trial of the cause in admitting testimony objected to by defendant.

Upon the overruling of this motion, a full bill of exceptions containing all the testimony was taken by the plaintiff in error, Samuel Fosdick.

The remaining facts are sufficiently stated in the opinion of the court.

Stallo & Kittredge, for plaintiff in error.

A. Brower, for defendant in error.

DICKMAN, J. Prior to the year 1848, L. B. Lewis and William Eichelberger, under the firm name of Lewis & Eichelberger, had been partners in the flouring mill business in the town of Lawrenceburgh, Indiana, and in July of that year Samuel Fosdick, the plaintiff in error, came into the firm as a dormant partner. He continued his relations with the firm as dormant partner, having a one-third interest in the concern, until September 17, 1868, when his connection with the firm was dissolved, and notice of the dissolution was published in a Lawrenceburgh newspaper. Fosdick resided in Cincinnati, and there managed the financial affairs of the firm, and by accepting its drafts, making sales of flour, and raising the requisite funds for carrying on the business, rendered unnecessary the borrowing of money in Lawrenceburgh. With the exception of a few bank officers and directors in that town, very few if any, of the residents appear to have known that he had any interest in the firm of Lewis & Eichelberger. In addition to the business of manufacturing flour, L. B. Lewis and William Eichelberger, under the same firm name of Lewis & Eichelberger, were engaged in Lawrenceburgh in other branches of business-in prosecuting other enterprisesin which Fosdick was in no manner interested. As a firm engaged in other than the flouring mill business, they were paying out on an average about one thousand dollars daily; and relying upon their reputation for solvency, people were in the habit of depositing money with them on interest, without reference to the use to which it was to be applied, and for which they were accustomed to give their notes signed in the firm name of Lewis & Eichelberger. Among those who had loaned the firm money was the defendant in error, Cornelius Van Horn. It is not manifest that he had any knowledge of Fosdick's interest in the copartnership of Lewis & Eichelberger, when, on the twenty-first of March, 1868, he made the

loan and took from Lewis the note executed in the name of that firm. But, we are satisfied from the testimony, that the money loaned by him was never used in the flouring mill business of Lewis & Eichelberger, and that Fosdick never derived any benefit from it whatever.

The material question however arises, Did Lewis & Eichelberger borrow the money from Van Horn upon the credit of the firm in which Fosdick was a dormant partner? At the time of the loan, Van Horn, in common with those who had monetary dealings with Lewis & Eichelberger not connected with their flouring mill business, might be presumed to know that they could not carry on their milling business without a supply of wheat. But at the time of the transaction, when the money passed and the note was made, Lewis said nothing as to the use or purpose for which he wanted the money. He did not then represent to Van Horn or any one else that he was borrowing the money on the credit of Lewis & Eichelberger, as copartners in the flouring mill business; nor does it appear that he represented Fosdick to be a member of the firm. The only conversation on the occasion seems to have been in regard to the time the paper should run, and the rate of interest to be paid. The testimony as to an alleged statement of Lewis, on the day of the transaction or the day before, that he wanted the money borrowed from Van Horn for the purpose of buying wheat, is too contradictory to sustain a reliable opinion. The fact that Van Horn loaned the money in the office at the mill, cannot place him upon a footing dif ferent from that of others, who with full knowledge of the milling business carried on by the firm, loaned their money to Lewis & Eichelberger to be used in enterprises outside the flouring mill business. We need not inquire what firm of Lewis & Eichelberger it was to which Van Horn supposed he was making the loan, except so far as we have evidence of his acts and declarations. But, certain it is, that while notice. of the dissolution of the firm in which Fosdick had been a dormant partner and of the fact of his interest in the milling business, was published in a newspaper in Lawrenceburghthe residence of Van Horn-as far back as September, 1868, he did not see fit to assert his claim against Fosdick until the year 1875. Until Van Horn called upon him shortly before