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or dispose of the partnership effects and property for any and all purposes within the scope of the partnership, and in the course of its trade and business, but declares it to be well settled upon principle and authority, that one partner cannot against the opposition of another, make a general assignment for the benefit of a portion of the firm creditors, when such creditors or their agent had notice of such opposition: Bull, etc. v. Harris, etc., 18 B. Monroe, 195.

Respecting the implied power of a partner to make such an assignment without the knowledge or consent of a co-partner, Chancellor Farnsworth says in Kirby v. Ingersol, Harrington's Ch., (Mich.) 172, 186. "There is no such implied power. The authority impliedly vested by each partner in the other is for the purpose of carrying on the concern and not for the purpose of breaking it up and destoying it. One partner does not by any implication confer a power upon his co-partner of divesting him of all interest in or authority over the concern.

"The elementary writers upon the subject do not sustain this position. The adjudged cases, when carefully examined do not sustain it; and assuredly it is not sustained by the reason of the thing or the dictates of justice. Every consideration of public policy or commercial convenience is against it.

Being of opinion that the authorities cited announce correct legal principles, and that they are applicable to transfers of the nature of the one under consideration, made under the circumstances disclosed by the evidence, we hold that the paper "exhibit B," conveyed no title of itself, and created no independent lien in favor of the plaintiff below, as against the creditors of the firm of Tribe & Jefferay.

In as much, therefore, as the trial below was conducted upon a theory at variance with the views of the majority of the court upon several points, the judgment is reversed and the cause remanded. Judgment reversed.

Mr. Justice Helm took no part in the decision.

BRANDENBURG v. MILES.

Filed October 27, 1884.

CAUSE OF ACTION-STATEMENT OF DAMAGES.-An action for damages must rest upon facts showing a right on the part of the plaintiff to require the performance on the part of the defendant of some legal duty, a failure to perform such duty, and that the damages sought resulted therefrom. The complaint in this action held not to state facts in compliance with this rule.

ERROR to the district court of Arapahoe county. The opinion states the facts.

Brown & Putnam and John W. Jenkins, for the plantiff in error. Decker & Yonley, for the defendant in error.

STONE, J. The only question in this case is as to the sufficiency of the complaint. The said complaint, to which a demurrer for insufficiency to state a cause of action, was sustained by the court below as follows:

"The plaintiff complains and alleges:

I. That, on the first day of January, A. D. 1880, he was the owner in fee simple of lot number twenty-four in block number forty-seven in the east division of the city of Denver in said state and county, and has been from thence hitherto, and is now, the owner thereof.

II. That, on the fifth day of April, A. D. 1880, he purchased from Joab O. Brown three inches off lot number twenty-five in said block adjoining his said lot twenty-four, and the said fraction of said lot was on said last named day conveyed to plaintiff in fee simple, and he is now the owner thereof.

III. The plaintiff having determined to construct a large and valuable brick building upon said lot and fraction at a cost of twenty thousand dollars to cover the entire frontage of said lot and fraction, being twenty-five feet and three inches on Larimer street in said city, employed a competent architect at a large expense to plaintiff, to draft plans and specifications for said building, the frontage of which building was by said plans and specifications to be twenty-five feet and three inches on said street.

IV. That said architect accordingly drew and completed said plans and specifications and submitted them to plaintiff, and that he approved the same on, to wit: the twenty-fifth day of April, A. D. 1880, and commenced the construction of his said building in pursuance thereto.

V. That at all of the dates aforesaid, and thence hitherto, the defendant was, and is, the owner of lot number twenty-three in said block forty-seven, adjoining said lot twenty-four, on which, on, to wit: the said twenty-fifth day of April, there was erected a frame building, which building extended over and on the lot twenty-four of plaintiff a distance of three inches, so that plaintiff could not occupy his entire lot.

VI. That on, to wit: the said twenty-fifth day of April, a. D. 1880, and at divers other times before and after that day, the plaintiff requested defendant to remove his said obstruction from his, the plaintiff's, lot, but that so to do the said defendant wholly neglected and refused.

VII. That in consequence of the said refusal of defendant and of his wrongful act in that behalf, plaintiff afterwards and on, to wit: the first day of May, was required to have all of his said plans and specifications changed and redrawn at an expense of, to wit: five hundred dollars, and was required to and did reduce the width of his said building to twenty-five feet, and that thereby the said three inches of said lot twenty-four was lost to the plaintiff.

VIII. That in consequence of the said wrongful acts of defendant, after the plaintiff had completed all of his arrangements for the

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construction of his said building, he, the plaintiff, was delayed in the completion of his said building for the period of two months, at an actual loss to him in the sum of two thousand dollars, and suffered other losses in the change in the width of said building, in the loss of his first plans and specifications, and in the entire loss of the said three inches off said lot twenty-four, in said block, which plaintiff avers has been entirely lost to him, and is now of no value, in the further sum of three thousand dollars. And plaintiff avers that he was forced to construct his said building without occupying and using the said three inches of said lot twenty-four because of the refusal of defendant to remove his said building therefrom.

Wherefore, plaintiff demands judgment against defendant for the sum of five thousand dollars, his damages and for the costs of this action."

We do not think the court erred in sustaining the demurrer. The complaint does not state a cause of action in ejectment, nor in forcible entry or unlawful detainer, nor in trespass, nor for a specific recovery of the three inches in width of the ground specified. Nor does it appear that the plaintiff sought to state a cause of action for either of the above mentioned remedies. The only facts stated as ground for the recovery of the damages claimed are that plaintiff owned certain premises, on which he desired to build, so as to cover the whole width thereof, and made plans accordingly; that defendant owned a house which covered a portion of said premises; that plaintiff requested defendant to remove the house from the portion in controversy, and that defendant refused; that plaintiff thereupon, instead of seeking by legal means to obtain possession of that portion of his ground claimed to be covered by defendant's house, altered his architectural plans, built a smaller house than first designed, and thereafter brings this action to recover damages for delay in the construction of his house, loss "in the width of the building," the expense of altering plans, and "entire loss of the said three inches of said lot," and bases his right of recovery of the sum demanded as damages upon the alleged "wrongful act" of defendant in neglecting and refusing "to remove his said obstruction from the plaintiff's lot."

The complaint fails to state sufficient facts to show wherein the refusal of defendant to remove his house from the ground in controversy was wrongful or unlawful, or that the damages claimed were the direct result of a wrongful or unlawful dispossession, occupation, trespass or detention. For aught that appears in the complaint the defendant's alleged occupation of plaintiff's ground may have been by virtue of a previous unexpired lease, or some other lawful right, and such possibility of right is not precluded by the averment that the plaintiff was the owner in fee of the ground in question.

The recovery of damages must in all cases rest upon facts showing a right on the part of the plaintiff to require the performance on the part of the defendant of some legal duty, a failure to perform such duty, and that the damages sought resulted therefrom.

The complaint in the case falls far short of setting out a state of facts in compliance with this rule.

Plaintiff was given an opportunity by the court below to amend his complaint, but elected to stand thereby. Perceiving no error in the record, the judgment dismissing the complaint will be affirmed. Judgment affirmed.

SUPREME COURT OF OREGON.

BROBACK v. HUFF.

Filed October 23, 1884.

WRIT OF REVIEW-DOES NOT LIE AFTER EXPIRATION OF TIME FOR APPEAL.-A writ of review does not lie to bring up the record of the proceedings of a county court in a civil action after the right of appeal has expired by the lapse of more than thirty days since the rendition of the judgment.

W. H. Holmes, for the appellant.

N. B. Knight, for the respondent.

WALDO, J. The question to be decided in this case is, whether the writ of review will go to bring up the record of the proceedings of a county court in a civil action after the right of appeal has gone by by the lapse of more than thirty days since the rendition of the judgment.

Section 875 of the civil code makes section 525 applicable to the review of the judgments of county courts in such actions, and section 525 expressly enacts that such judgments shall be reviewed on appeal and not otherwise. The attention of the court in Christian v. Evans was not called to these sections, and the dictum in that case, that review will lie to a county court after the time for appealing has gone by must be considered an error.

The judgment must be reversed.

SUPREME COURT OF WYOMING.

COOK v. TERRITORY.

Filed October 9, 1884,

MOTION TO QUASH INDICTMENT-PATENT DEFECTS.-A motion to quash an indictment, under the Compiled Laws, page 152, section 101, only lies for defects which are apparent upon the face of the record.

THE SAME IRREGULARITIES IN FORMATION OF GRAND JURIES.-The validity of an indictment, for irregularities in the organization of the grand jury, not apparent upon the face of the record, can only be called in question by challenge or plea in abatement. A motion to quash the indictment does not lie.

SEPARATION OF JURORS DURING TRIAL.--A separation of one trial juror from his fellows during the progress of a trial for murder, for the purpose of speaking with a third person about a matter entirely disconnected with the trial, will not warrant a reversal.

INDICTMENT FOR MURDER-VERDICT SUFFICIENCY OF.-Under an indictment, framed in but one count, which charges murder in the first degree, a verdict is sufficient which finds the defendant guilty as charged in the indictment.

DRUNKENNESS AS BEARING ON INTENTION IN COMMISSION OF CRIME.-The effect of a prisoner's inebriated condition, as bearing upon the intention with which he committed a crime, is a question for the jury.

INSTRUCTIONS GIVEN BY A COURT OF ITS OWN MOTION, to which no exceptions are taken, are not grounds for reversal.

JUSTIFICATION OF HOMICIDE-BURDEN OF PROOF-INSTRUCTIONS.-In a prosecution for murder, where, from all the circumstances surrounding the homicide, as detailed in evidence by the prosecution, nothing is disclosed in any way tending to excuse or justify the homicide, it is incumbent upon the defendant to show such justification or excuse, if any there be. If he neglect to offer any evidence in justification, an instruction which omits to charge concerning the law of self-defense is not error.

INSTRUCTIONS ASKED FOR, IF THE SAME HAVE ALREADY BEEN GIVEN in substance, may be

refused.

AFFIDAVITS OF JURORS AND BAILIFF-ADMISSIBILITY OF.-The affidavits of jurors and the bailiff having the jury in charge, are admissible in support of the verdict.

ERROR to the district court. The opinion states the fact.

Downey & McIntyre, for the plaintiff in error.

J. W. Blake, for the defendant in error.

LACEY, C. J. The plaintiff in error was indicted on December 3d, 1883, in the district court of Albany county for the killing of James Blount. Trial was had upon the indictment resulting in a verdict of guilty.

The court below overruled the motion for a new trial and pronounced judgment and sentence of death upon the verdict.

The evidence is all in the record by bill of exceptions. The case is prosecuted here by petition in error.

The petition in error makes thirteen assignments of error as follows:

"1. That the court erred in overruling the motion of the defendant herein to quash the indictment in this cause found and returned."

"2. That the court erred in overruling the motion of the defendant herein, in his plea to the jurisdiction of the said district court." "3. That the court erred in overruling the motion of the defend ant for a continuance of the said cause to the next ensuing term thereof."

"4. That the said court erred in giving the instructions to the jury offered and asked for by and on the part of the prosecution on

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