skill, or some or all of them, in lawful commerce or business, and to divide the profits and bear the loss in certain proportions. Cogswell v. Wilson (Or.), IV, 489. 2. THE SAME-AGREEMENT TO SHARE PROFITS AND LOSS.-To constitute a partnership inter se, mere community of interest is not sufficient; there must be an agreement to share in the profits and loss. Such agreement must provide for an interest in the profits as profits, and not for a mere division of the gross earnings, and such profits must be shared as the result of the adventure or enterprise, and not simply as a measure of compensation. Id.

3. THE SAME-BREACH OF PARTNERSHIP AGREEMENT-DISSOLUTION OF PARTNERSHIP. The existence of a partnership does not depend upon the fact that each of the partners has in all things complied with his agreement. If the contract has been made, property and labor contributed, and the partnership business commenced, the partnership continues until legally dissolved. Id.

4. THE EVIDENCE REVIEWED, and held that a partnership existed between the defendant and the plaintiff's vendor. Id.

5. A MINING PARTNERSHIP IS NOT RESTRICTED TO CASES WHERE THE MINE IS OWNED by the parties working it. Such partnership may exist as well where the parties have a joint interest and co-operation merely in the working of the mine, or in carrying on mining operations, as where they own the mine itself. Manville v Parks (Col.), I, 603.

6. THE RELATION OF MINING PARTNERSHIP BETWEEN THE DEFENDANTS, WITH RESPECT TO THE MINING OPERATIONS, for the carrying on of which the debt sued for was created, held to be established by the facts. Id.

7. CO-WORKERS IN A MINING OPERATION, TO THE EXTENT OF THEIR INTEREST IN THE PROPERTY, are tenants in common, and in the working of the mine are considered as partners. Id.

8. ONE MEMBER OF A MINING PARTNERSHIP HAS IMPLIED AUTHORITY TO BIND THE FIRM for articles purchased, essential to the carrying on of the business, and the accomplishment of the purpose of the partners in working the mine, notwithstanding there is a secret agreement between such partners by which some of them were not to be liable for the expenses of the business. Such agreement could not affect the rights of those who dealt with the partnership without any notice of the limita tion upon the individual liability of particular members. Id.

9. DEFENSE OF SPECIAL PARTNERSHIP AND NOTICE THEREOF BY THE PLAINTIFF must be pleaded, or evidence thereof is inadmissible. Id.

10. THE FAILURE TO JOIN A DORMANT PARTNER AS DefendanT, in an action against a partnership, can not be pleaded in abatement; and the refusal to admit in evidence the deposition of such partner, when all his acts and declarations in reference to the subject-matter of the controversy are already in evidence, is not error. Pinschower v. Hanks (Nev.), I, 369.

11. JUDGMENT AGAINST A PARTNERSHIP ON ACCOUNT OF GOODS SOLD AND DELIVERED TO IT will be reversed when the evidence shows that many of the items of such account were furnished to one of the partners individually, and that the same were included in the findings and judgment against the firm. Burt v. Collins (Cal. ), I, 566. 12. PARTNERSHIP AGREEMENT REDUCED TO WRITING, BUT NOT EXECUTED by the partners, is not evidence of the terms and conditions of the partnership. Lowe (Ariz.), I, 658.

13. FINDING AS TO PARTNERSHIP HELD SUPPORTED BY THE EVIDENCE. Little (Cal.), II, 496.

Tweed v.

Snead v.

14. PARTNER'S INTEREST IN FIRM ASSETS-ATTACHMENT FOR INDIVIDUAL DEBT-SALE BY SHERIFF-POSSESSION--ACCOUNTING.-A sheriff may attach and sell the interest of one partner in the partnership property, for his individual debt. Upon so doing, the sheriff may take possession of the entire firm assets, and transfer such possession to the judgment purchaser, who thereupon becomes a tenant in common with the other partners. If such property is sold by the judgment purchaser, and the entire proceeds converted to his own use, he is guilty of conversion, and an action by the remaining partners for an accounting will not be held barred by the statute of limitations, unless the date of such conversion is made affirmatively to appear. Wright v. Ward (Cal.), III, 626.

15. THE SAME-ACCOUNTING

INDISPENSABLE PARTIES.-In an action for such accounting, the partner whose individual interest has been sold is an indispensable party, although he is out of the state and his whereabouts unknown. Id.

16. PARTNERSHIP--ASSIGNMENT BY ONE PARTNER.-One partner, in the voluntary ab sence of his copartner from the state, has authority to assign any portion of the copartnership property to a creditor. Bernheim & Co. v. Porter (Cal.), III, 434.

17. THE VOLUNTARY ABSENCE OF ONE PARTNER FROM THE STATE does not operate as a dissolution of the partnership. Id.

18. THE TRANSFER BY ONE PARTY OF HIS INDIVIDUAL INTEREST in a portion of the firm property does not give his transferee the right to maintain replevin therefor as against a bona fide purchaser from the firm.

Id.

19. PARTNER SELLING PARTNERSHIP PROPERTY IN BAD FAITH does not make the other partner a tenant in common thereof with a purchaser who acts in good faith. Crites v. Muller (Cal.), III, 649.

20. PARTNERSHIP LANDS-SALE BY ONE PARTNER TO BONA FIDE PURCHASER.-The equitable interest of a partner in land purchased by his copartner is discharged by a transfer of the legal title by the latter to a purchaser for value and without notice. McNeil v. First Congregational Soc. (Cal.), IV, 421.

21. ACTION BETWEEN PARTNERS TO RECOVER ASCERTAINED BALANCE-PLEADINGS.-An action may be maintained by one partner against his copartner for the balance found due upon a settlement of the partnership affairs. In such action no express promise to pay such balance need be shown; it is sufficient if the sum has been ascer tained and agreed upon by the act of both partners. But an averment of the settlement by the plaintiff is material, and without it his complaint is fatally defective. An averment that at the time of dissolution there was in the hands of the defendant "clear profits," amounting to a sum stated, is not equivalent to an allegation of settlement. Bean v. Gregg (Col.), IV, 241.

22. ASSIGNMENT OF FIRM PROPERTY BY ONE PARTNER FOR BENEFIT OF CREDITORS.-A voluntary assignment of all the firm property, made by one partner in favor of a creditor, without the knowledge or assent of his partner, and against his previously expressed wishes, is invalid. Wilcox v. Jackson (Col.), IV, 326.

See ACCOUNT STATED, 3; ACCOUNTING, 1, 5, 6; ASSIGNMENT FOR BENEFIT OF CREDITORS, 3; JUDGMENT, 27, 31; LIENS, 1; NEGOTIABLE INSTRUMENTS, 17, 18, 25; PARTIES, 2; PARTITION, 7; SURETIES, 12.

PATENT.

1. VERIFICATION OF PLEADINGS.-Under section 914 of the revised statutes the pleadings in an actior. for the infringement of a patent must be verified as provided in section 79 of the Oregon code of civil procedure. Cottier v. Stimson (U. S. Cir. Ct., Or.), I, 251.

2. DOUBLE PLEAS OR DEFENSES.-Both at common law and under the code special pleas or defenses may be pleaded with the general issue or a denial of the allegations of the complaint. Id. 3. DEFENSES TO AN ACTION FOR INFRINGEMENT.-The five matters which may be given in evidence upon notice under the general issue, as provided in section 4920 of the revised statutes, as defenses to an action for the infringement of a patent, may be pleaded specially with the general issue, and other defenses thereto may be pleaded specially, either with or without the general issue and such notice. Id.

4. SPECIAL PLEAS CRITICISED.-Quære: Is it sufficient to allege in a special plea that the thing patented was not marked with the word "patented," without also alleging that the defendant was not otherwise notified of the infringement? and is not a plea that the thing patented was not an invention when produced by the patentee a mere repetition of the special matter that said patentee was not the original and first inventor thereof? But a defense that an invention is not useful must be specially pleaded. Id.

5. INOPERATIVE PATENT-REISSUES.-A patent need not be inoperative in its entirety to entitle the patentee to a reissue. If it be inoperative in part, so far as not to secure all that the inventor is entitled to claim, and what he is entitled to claim appears in his specifications, it is inoperative within the meaning of the provisions of the statute, and entitles the patentee to a reissue in such form as to cover his entire invention. Giant Powder Company v. Safety Nitro Powder Company (U. S. Cir. Ct., Cal.), II, 79.

6. FRAUD IN REISSUE IS A QUESTION FOR THE PATENT OFFICE.-Whether a patentee innocently or fraudulently seeks a reissue of his patent is a question of fact for the officers of the patent office alone to determine; and their decision is conclusive in a collateral attack upon the patent. Id.

7. REISSUES IN IDENTICAL LANGUAGE OF A PRIOR PATENT VALID.-The owner of patent 78,317 surrendered it, and obtained a reissue in patent No. 5,619. The latter was surrendered and reissued in patent No. 5,799, for the purpose of correcting a clerical error. Reissue No. 5,799 was held by the circuit court of the ninth circuit

to be void, as embracing more than was shown or claimed in the original patent. There were conflicting decisions in different circuit courts upon the validity of the last reissue. After it had been adjudged void, the owner surrendered patent No. 5,799,, and procured another reissue in the identical language of original patent No. 78.317. Held, that the last reissue is not void under the circumstances, in consequence of its being in the identical language of the original patent. Id. 8. SUBCOMBINATIONS INDEPENDENT PATENTS.-Where a patent is issued for an invention consisting of a combination of a number of elements, and there is, at the same time, an invention made by the patentee consisting of a subcombination of a part of the elements entering into the larger combination, and the patent issued does not embrace such subcombination, the inventor of both, at the same time, may afterwards obtain an independent patent for the subcombination, provided he applies therefor within two years after the invention has gone into public use or been on sale. Cahn v. Wong Town On (U. S. Cir. Ct., Cal.), II, 7. 9. PATENT FOR "REVOLVING DIP-NET."―The patent issued to Thornton F. Williams on August 2, 1881, and numbered 245,251, for an "improvement in revolving dipnets," declared void for want of both invention and novelty, the same having been invented and put in operation by Samuel Wilson, at the cascades of the Columbia, in the spring of 1879, and from which machine the said Williams, in the fall of that year and the spring of 1880, constructed his "revolving dip-net." Williams v. MeCord et als. (U. S. Cir. Ct., Or.), II, 503.

10. PATENT INFRINGEMENT.-A patent for an improvement in the manufacture of boots, consisting of an inside counter-protector at the back of the boot, the sides of which extend over and beyond the eye-seams, at the sides of the boot, and fastened by a row of stitching beyond the eye-seams, covering and protecting them, is not infringed by an outside counter-protector extending into and fastened in lapped seams, at the sides of the boot, and not extending beyond, and not fastened by stitching outside the lapped seams. Buckingham v. Porter et al. (U. S. Cir. Ct., Cal.), III, 667. 11. PATENT No. 214,684, ANTICIPATED.-That part of the claim of patent No. 214,654, represented by figure 11 in the drawings annexed to the patent, consisting of an outside counter-protector with its lateral ends extended to the side-seams of the boot, inserted in the side-seams formed by doubling down the back and front leathers of the boot, either with or without a welt, and stitching all together in forming the seams, is old, and on that ground the patent is void as to that part of the claim, being the only part infringed, by a boot having an outside counter-protector extended into and similarly fastened in its lapped side-seams only. Id.

12. STATE OF THE ART.-The claim of a patent must be construed in the light of the state of the art. Id.

13. PATENTEE MUST MARK PATENTED ARTICLES-SECTION 4900, REVISED STATUTES, CONSTRUED.The patentee having put his patented article upon the market without marking it "patented," as required by section 4900, revised statutes, defendant, without notice of the patent, from time to time for a numbers of years infringed it. In 1875, while making a steam condenser having in it the patented article, he was notified for the first time that it was patented, whereupon he immediately offered to pay the established royalty for all the patented article he had already introduced into that condenser, and for enough more to finish it; but the patentee refused to accept the offer unless defendant would pay the entire royalty for all previous infringements made without notice of the patent, which defendant refused to do. Defendant thereupon finished that condenser, using sufficient of the patented article for that purpose, but did not otherwise infringe the patent after notice. Held, that defendant was only liable for the infringement arising from the making and selling the condenser finished after receiving actual notice of the patent. Allen v. Deacon (U. S. Cir. Ct., Cal.), III, 381.

14. NOTICE OF SPECIAL MATTER UNDER SECTION 4920, R. S.-Notice of special matter in an action for the infringement of a patent is not a pleading, and instead of being put in the answer, should be served on the adverse party. Cottier et al. v. Stimsos et al. (U. S. Cir. Ct., Or.), III, 472.

15. SPECIAL PLEA IN ACTION FOR INFRINGEMENT.-Special matters which may be given in evidence under the general issue and a notice in such action may also be pleaded specially; but special pleas must conform to the code of civil procedure. Id. 16. THE EASTMOND PATENT No. 171,926, JANUARY 11, 1876.-Neither the Holt patent No. 147,266, issued February 10, 1874, nor "A Treatise on Ventilation" written by Lewis W. Leeds, ard printed by John Wiley & Sons, New York, 1871, antici

pated the invention of Elbert Eastmond, entitled in the application for a patent, made September 22, 1875, "Improvement in Ventilating Water-closets." Id. 17. DAMAGES.-The amount of the royalty charged and paid for the use of the invention taken as the measure of damages for an infringement of the patent therefor. Id.

18. PROCESS AN INVENTION DISTINCT FROM MECHANISM PRODUCING THE PROCESS.— A process by which a new result is obtained is a different thing from the mechanism by which it is carried out, and is a distinct, severable, and independent patentable invention. Scrivner et al. v. Oakland Gas Co. (U. S. Cir. Ct., Cal.), IV, 197. 19 REISSUE ENLARGING THE PATENT AFTER LONG DELAY VOID.-The original patent was for the mechanism by which a new and useful result was produced. The patent, after eleven years' delay, was reissued in such form as to embrace a claim for the process as well as for the mechanical means by which the process was carried out. Held, that the reissued patent for the process is void. Id.

PASSAGE OF ACT.

See CONSTITUTIONAL LAW, 2, 3; STATUTE OF LIMITATIONS, 1, 2.

PAYMENT.

1. PAYMENT FOR SPECIAL PURPOSE-ACTION FOR MONEY HAD AND RECEIVED.-An action for money had and received lies to recover back money paid by a debtor to his creditor to be applied in satisfaction of a particular obligation, when the same is not so applied, and the obligation is otherwise discharged. It is not necessary in such action to allege a promise to repay. Stewart v. Phy (Or.), II, 536.

2. APPROPRIATION OF PAYMENTS - DEBTOR AND CREDITOR-GENERAL PAYMENT.-A debtor may direct, on paying money to his creditor, the appropriation of it to a particular account or item of indebtedness; but if he make or indicate no such appropriation, the creditor may apply the money as he pleases. Where money is paid generally on an account without any appropriation it should be applied to the first items in the account. And in an action to recover a balance due on a running account, the debtor can not be heard to dispute the validity of the items so paid. Mackey v. Fullerton et al. (Col.), IV, 569.

See ADMIRALTY, 25, 27; ASSIGNMENT, 1; BONA FIDE PURCHASERS, 3; CERTIORARI, 2; EVIDENCE, 7, 10, 11; NEGOTIABLE INSTRUMENTS, 4, 5, 7, 10 12, 23; PLEADING AND PRACTICE, 3.

PENALTY.

See CONTEMPT, 11; SPECIFIC PERFORMANCE, 2.

PETIT LARCENY.

See LARCENY, 13, 14.

PERJURY.

1. PERJURY UNDER LAWS OF THE UNITED STATES To constitute perjury under the laws of the United States, it must appear that the officer administering the oath was authorized to administer it by the laws of the United States. United States v. Madison (U. S. Dist. Ct., Cal.), ÍII, 543.

2. THE SAME TIMBER ENTRIES AFFIDAVIT. The affidavit required by section 2 of the act of June 14, 1878, "to encourage the growth of timber on the western prairies," may be made before the clerk of any state court of record, or before any local state officer, such as a notary public residing in the district where the land is situated, authorized by the state law to administer oaths. The maker of such affidavit, so taken, if false, is guilty of perjury under the laws of the United States. Id. 3. SUBORNATION OF PERJURY-ACTION FOR-DAMAGES.-A civil action for damages does not lie against a person for suborning a witness to swear falsely in a criminal prosecution against the plaintiff. Taylor v. Bidwell (Cal.), III, 479.

4. SUBORNATION OF PERJURY, INDICTMENT FOR.-To sustain an indictment for procuring a person to commit perjury, it is necessary that perjury has in fact been committed. It can not be committed unless the witness swears to what was false, willfully and knowingly. Consequently the indictment must aver, not only that the

statements made by the witness were false in fact, and that he knew them to be false, but also that the party procuring him to make those statements knew that they would be intentionally and willfully false on the part of the witness, and thus that the crime of perjury would be committed by him. United States v. Evans (U. S. Dist. Ct., Cal.), II, 611.

PILOT.

See ADMIRALTY, 1–5.

PLACE OF TRIAL.

See VENUE.

PLACER MINE.

See MINES AND MINING.

PLEADING AND PRACTICE.

1. PARTIAL DEFENSES AT COMMON LAW AND UNDER CODE, HOW PLEADED.-At common law every plea must go to the whole cause of action, and be an entire answer thereto on the record. The same rule prevails under the code, except that matter may be set up by way of answer which constitutes only a partial defense; but in such case it must be pleaded as a partial defense, and not assume to answer the entire cause of action. Webb v. Nickerson (Or.), IV, 485.

2. DENIAL OF KNOWLEDGE OR INFORMATION.-A defeudant is not bound to inform himself concerning the truth of an allegation of which he never had any knowledge before answering the same; and a denial of any knowledge or information thereof is a sufficient denial, and will not be stricken out as sham, unless it plainly appears that the same is false. Oregonian Railway Company, Limited, v. Oregon Railway and Navigation Company (U. S. Cir. Ct., Or.), IV, 548.

3. FRIVOLOUS PLEADINGS.--A frivolous answer or defense is one which contains nothing that affects the plaintiff's case, and may be stricken out on motion; but a motion to strike out for frivolousness is not well taken if the matter included in it is material if true. Id.

4. 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. Brandenburg v. Miles (Col.), IV, 336. 5. A COMPLAINT IN AN ACTION TO RECOVER THE AMOUNT OF A DEFICIENCY after a sale of mortgaged premises under a judgment of foreclosure must allege that such deficiency has not been paid; an allegation of the insolvency of the judgment debtor is not enough. Vogel v. Walker (Utah), I, 699.

6. PASSAGE OF AN ORDINANCE BY THE CITY COUNCIL IS SUFFICIENTLY SHOWN by an allegation which sets forth a copy of the ordinance, and avers that the same was "duly passed and adopted." Los Angeles v. Waldron (Cal.), I, 335.

7. ABSENCE OF FAULT ON THE PART OF THE PLAINTIFF in an action to recover for personal injuries caused by the defendant's negligence need not be averred or proved by him. Lopez v. Central Arizona Min. Co. (Ariz.), I, 41.

8. DISTRICT COURTS OF UTAH HAVE JURISDICTION BOTH IN LAW AND IN EQUITY, under the act of congress of June 23, 1874, and by the territorial legislation the distinctions in the forms of actions at law and suits in equity are abolished. There is now but one form of civil action for the enforcement of private rights, and the redress or prevention of private wrongs, and the defendant is permitted to set up by answer as many defenses as he may have. Kimball v. McIntyre (Utah), I, 316. 9. EQUITABLE DEFENSE SET UP AGAINST AN ASSERTED LEGAL RIGHT should be first considered and passed upon by the court. Id.

10. ALLEGATION IN AN ANSWER IN AN ACTION FOR THE FORECLOSURE of an assessment lien for replanking a street in the city and county of San Francisco, to the effect that such street had not been graded to the official grade, is immaterial, and a failure to find on such allegation is not error, if it appears that the grade and width of such street had been established by the board of supervisors before that body ordered it planked. Knowles v. Seale (Cal.), I, 46.