C. Camody were partners in the firm of the Freeman Lumber Company at the time the debt claimed in this suit was created, and in which judgment has been obtained against them as surviving partners; and no execution has been issued against them for the collection of such claims, and returned "No property found." (4) W. H. Perkins and M. C. Camody, as surviving partners of the Freeman Lumber Company, are necessary parties to this suit. After the filing of the demurrers, the motion, and the pleas, the bill was amended by alleging that one Hilliard Johnson, who resides in Limestone county, claimed some interest in the tract of land described in the bill, the precise nature and character of which was to the complainant unknown; that such interest was unknown to the complainant at the time of the filing of the bill; and said Johnson was made a party defendant. Subsequent to the amendment of the bill, one Hilliard Tate filed a bill, in which he averred that a summons to Hilliard Johnson had been served upon him in this cause; and he then alleged that his name was not Hilliard Johnson, but Hilliard Tate, and that he was known and called by the name of Hilliard Tate, and further alleged facts tending to show that his name was Hilliard Tate. The complainant demurred to the several pleas of the defendants as follows: To the first plea, on the ground that it is not a suit seeking a personal judgment or decree against the personal representative of H. S. Freeman, or seeking to bind or affect assets of the decedent's estate. To the second plea, that the complainant seeks to subject, to the payment of his debts, lands, and the bill cannot be filed in any other county than in the one in which the land is situated. Το the third plea, upon the ground that it is not shown that W. H. Perkins and M. C. Camody, or either of them, have any interest in the land sought to be subjected to the payment of complainant's debt. To the plea of misnomer filed by Hilliard Tate the complainant demurred upon the following grounds: (1) It does not deny that said defendant is known by the name of Hilliard Johnson. (2) It does not deny that the said defendant is known by the name of Hilliard Johnson as well as by the name of Hilliard Tate. Upon the submission of the cause upon the pleadings, the chancellor rendered a decree overruling the demurrers and motion to dismiss the bill, and sustaining the complainant's demurrer to the several pleas of the defendants. From this decree the defendants appeal, and assign the rendition thereof as error.

W. R. Francis, for appellants. E. W. Godbey, for appellee.

COLEMAN, J. The averments of the bill show with sufficient definiteness that complainant sues in his character as surviving

partner; that the lands sought to be condemned are situated in Limestone county,the county in which the bill is filed; and that the debt was due by account for goods and merchandise sold by the partnership, of which complainant is the surviving partner, "to the Freeman Lumber Company, in which H. S. Freeman was the active and principal partner." The bill avers that, after said debt accrued, H. S. Freeman paid for certain lands, and had the title taken in the name of his wife, R. E. Freeman, for the purpose of hindering, delaying, and defrauding the creditors "of said H. S. Freeman; he and said Freeman Lumber Company being heavily indebted and insolvent." The bill shows that H. S. Freeman died subsequent to the transaction stated above. The purpose of the bill was to reach and subject to the payment of the debt the lands averred to have been fraudulently purchased in the name of the wife; and, as originally filed, the administrator of H. S. Freeman, and his wife, R. E. Freeman, were made parties respondent. It was subsequently amended by making one Hilliard Johnson a party respondent. As to said Hilliard Johnson, the bill avers that "he claims some interest in the tract of land described in the bill, the precise nature and' character of which is to the complainant unknown," and that such interest or claim was unknown to complainant at the time of the filing of the bill.

A creditor of a partnership is a creditor of the several members composing the firm, and may sue either, or the legal representative of either, for the obligation of all. Code 1896, § 40, for authorities. It does not appear from the averments of the bill that the Freeman Lumber Company, or the members composing the firm, other than H. S. Freeman, have any interest in the lands paid for by H. S. Freeman, and fraudulently conveyed to his wife by the vendor, or that it or they can be injuriously affected by any result of the litigation; nor can we conceive of any possible interest the heirs of H. S. Freeman can have in the lands, nor why they should be made parties respondent.

Section 331 of the Code of 1896, which prohibits the commencement of suits against executors and administrators, as such, until six months after the grant of letters, does not apply to suits instituted by creditors to reach and subject property fraudulently conveyed by the decedent in his lifetime. Such conveyances are valid against the grantor, and the property in no sense can become assets of the estate. Bank v. Glass, 82 Ala. 278, 2 South. 641; Torrey v. Bishop, 104 Ala. 551, 16 South. 422.

The commencement of a suit, and its continuous prosecution, operate as a presentation of a claim. Floyd v. Clayton, 67 Ala. 265.

Section 818 of the Code of 1896 reads as follows: "A creditor without a lien may file a bill in chancery to discover or to subject

to the payment of his debt any property which has been fraudulently transferred or conveyed, or attempted to be fraudulently transferred or conveyed by his debtor." Whatever may have been our former decisions, we regard the law as settled that this statute authorizes a simple contract creditor, without a lien, to file a bill to discover, or subject to the payment of his debt, any property which has been fraudulently conveyed by his debtor, without first exhausting his legal remedies to a return of nulla bona, whether the debtor be living or dead. Davis v. Swanson, 54 Ala. 277; Coffey v. Norwood, 81 Ala. 517, 8 South. 199; Handley v. Heflin, 84 Ala. 600, 4 South. 725; McClarin v. Anderson, 109 Ala. 571, 19 South. 982; Lehman v. Meyer, 67 Ala. 396.

Hilliard Johnson did not object to the bill by demurrer. Those filed by the other respondents are without merit, and were properly overruled. A plea in abatement on the ground of misnomer must not only aver the true name, but must negative the fact that he is or was known and called by the name employed. Wren v. State, 70 Ala. 1; Bright v. State, 76 Ala. 96. The proper practice in a court of equity would have been a motion to strike the plea, and not by demurrer. The effect, however, was the same, and furnishes no ground for a reversal. Affirmed.

(40 Fla. 322)

MARX et al. v. CULPEPPER et al. (Supreme Court of Florida. July 19, 1898.) SALES-ACTION-ABATEMENT-PLEADING-DEMURRER-DISCRETION OF PARTIES-SURPLUSAGE.

Plaintiffs, George Marx and John Marx, partners, doing business as Marx Bros., sued Andrew F. Culpepper and John E. Dupont, partners, doing business as Culpepper & Dupont, defendants; and it was alleged in the declaration that defendants, on a given date, were indebted to plaintiffs in a certain sum for goods before that time sold and delivered by plaintiffs to the defendants at their request. Defendants filed separate pleas in abatement that neither was at the time of pleading, nor on the date mentioned in the declaration, nor at any intermediate time, a member of a copartnership composed of defendants, doing business as Culpepper & Dupont, or otherwise. Held, on demurrer to pleas, that they presented immaterial issues, and should not have been sustained.

defendants as Andrew F. Culpepper and John E. Dupont, partners as Culpepper & Dupont. The summons was served upon Culpepper, one of the firm styled partners as Culpepper & Dupont, but both defendants appeared, and filed separate pleas hereinafter stated.

The first count in the declaration is that "George Marx and John Marx, partners, doing business as Marx Bros., plaintiffs, by M. C. Jordan, their attorney, complain of Andrew F. Culpepper and John E. Dupont, partners, doing business as Culpepper & Dupont, defendants, of a plea of trespass on the case on promises; for that whereas the defendants, on the 26th day of April, 1893, were indebted to the plaintiffs in the sum of one hundred and four and 25/100 dollars for goods, chattels, and effects before that time sold and delivered by the plaintiffs to the defendants at their request." Other common counts are added, and the conclusion is that "the defendants, though requested, have not paid the same, or either of them, or any part thereof, to the plaintiffs, but refuse so to do," to their damage, etc. Culpepper filed a plea in abatement to the suit in assumpsit by summons as follows, viz.: "That he is not now, nor was he on the 26th day of April, 1893, nor has he been at any intermediate time, a member of a partnership composed of this defendant and John E. Dupont, doing business as Culpepper & Dupont, or otherwise." Dupont interposed a like plea for himself, and plaintiffs demurred. The demurrer was overruled, and issue joined upon the pleas. Upon the issues joined, a verdict was returned for defendants, upon which judgment was entered quashing plaintiffs' writ.

Web

The count of the declaration set out clearly alleges a joint liability against defendants for goods, chattels, and effects sold and delivered to them by the plaintiffs before the 26th day of April, 1893. Partners, in the absence of a statute to the contrary, are jointly liable. Pollak v. Hutchinson, 21 Fla. 128; Tuttle v. Cooper, 10 Pick. 281. Not only are members of a partnership actually existing jointly liable for partnership debts, but when persons contract as partners, or hold themselves out to the public as such, or allow themselves to be so held out, they may be jointly liable, though no partnership in fact existed. ster v. Clark, 34 Fla. 637, 16 South. 601. In 2 Bates, Partn. § 1068, it is stated that "in suing partners the averments are not generally required to be different from those in an action against any other joint contractors; it is sufficient to show that the defendants bought the goods, or made the note, without averring that they are partners, or the manner of signing, or that they had a firm name." The partnership name is of small or no importance, and in this state suits by or against partners must be in the individual names of the firms. City of Jacksonville v. Etna Steam Fire-Engine Co., 20 Fla. 100; Richardson v. Smith, 21 Fla. 336; Hyer v. Vaughn, 18 Fla. 647; Lathrop v. Snell, 6 Fla. 750.

Authorities are numerous to the point that, when a joint liability is alleged against two or more defendants, it may be sustained by proof of such liability without reference to a partnership relation, or by showing such relation without alleging it in the declaration. Swinney v. Burnside, 17 Ark. 38; Brown v. Jewett, 18 N. H. 230; Maynard v. Fellows, 43 N. H. 255; Ward v. Dow, 44 N. H. 45; Lessing v. Sulzbacher, 35 Mo. 445; Ensminger v. Marvin, 5 Blackf. 210; Meacham v. Batchelder, 3 Pin. 281; Danaher v. Hitchcock, 34 Mich. 516; Mack v. Spencer, 4 Wend. 412. In Hyde v. Nerve-Food Co., 160 Mass. 559, 36 N. E. 585, a charge was refused to the effect that, if it appeared from the proof that plaintiffs were not partners when the suit was commenced, they could not recover, and in approving this ruling the supreme court said: "It is said that a firm is a legal person, and that a dead person cannot sue. But a firm is not a person in the sense supposed. For technical purposes of suing or being sued, the law does not know the firm, but only the men composing it." It was held in Transportation Co. v. Tiers, 24 N. J. Law, 697, that the description of plaintiffs as lately partners was surplusage, and no ground of nonsuit if not true. See, also, Millerd v. Thorn, 56 N. Y. 402. A complaint alleged that defendants were partners, and doing business under a given firm name, and the denial "that defendants ever were or are now partners" was held not to raise a material issue upon which it was necessary for the trial court to find. Hunter v. Martin, 57 Cal. 365. Where a partnership existence is essential in order to accomplish the ends of a suit, it is not doubted that it must be alleged and proved. The right to obtain a priority of payment out of partnership assets would depend, of course, upon a partnership relation. Some cases hold that in suits on written obligations the necessity of alleging a partnership may arise in order to avoid a variance. In Maynard v. Fellows, supra, it is said: "Where the form of the note, or the manner of signing it, are such as to render it necessary, in order to conform the allegations to the proof, to refer to the firm or partnership, it is necessary in some form to describe the note as a partnership note. But, where there is nothing in the form of the instrument to render this necessary, a partnership note may be declared on in the same form as any other joint note; and, unless the rights of other partnership creditors should be involved, it is immaterial whether the note is one of a partnership, or merely a joint note."

The present suit is in assumpsit for goods sold and delivered by plaintiffs to defendants prior to the 26th day of April, 1893, and the pleas, by not denying, admit the fact alleged. Under the allegation of a sale and delivery of goods prior to April 26, 1893, defendants would be jointly liable for same, whether a partnership really existed subsequent to that time or not. All that the pleas do allege is

that no partnership in fact existed between the defendants on and subsequent to the 26th of April, 1893; and this, it seems to us, presents an immaterial issue as to plaintiffs' right of recovery on the cause of action set out in the declaration. Some cases, especially under the code system of pleading, go to the extent of sustaining the pleas interposed in this case; but, considering the essentials as to liability of joint contractors, it is evident that, where a partnership relation exists, it is not necessary to allege it in order to show liability, and, when unnecessarily alleged, it may present an immaterial issue to deny it. Such is the present case, in our judgment, and the demurrer to the pleas should have been sustained. Mudge v. Treat, 57 Ala. 1.

The judgment will be reversed, with directions to sustain the demurrer, and for further proceedings.

1. An indictment for murder, complete in form in alleging the offense and the mortal wound inflicted, and further stating, of which said mortal wound the deceased then and there, in the county named, did languish, and languishing did live until a date mentioned, less than a year from the time when the wound was inflicted, upon which last day the deceased, in the county stated, did die, sufficiently alleges that the death of the deceased was caused by the wound inflicted.

2. Previous declarations of an accused, evincing a purpose to kill a deceased, made at a time not too remote from the occurrence, may be shown as bearing on the question of intent to kill and the animus of the accused towards the deceased.

3. Under a count in an indictment alleging that the accused made an assault upon a third party with intent to murder him, and then and there shot and killed the deceased, it is competent to show that the third party, at the time and in the same occurrence, was shot, and also the character of the assault upon him.

4. The state summoned a witness, but did not examine her, and she was placed on the stand for the accused. On cross-examination the state attorney asked if she had been convicted of any crime in this state. This question was objected to on the ground that the state could not impeach her own witness. Held, that the state was not precluded from asking the question; and, further, that the mere summoning of a witness for the state, without any examination, did not entitle the accused to treat the witness as one examined and vouched for by the state.

5. The accused offered to prove the character for lewdness of a witness summoned by the state, but who had not been examined at the time. Held, without intimating that such testimony was proper under any circumstances in a like case, that the offered testimony was entirely irrelevant and immaterial.

6. Every fact from which the jury may legitimately deduce innocence or guilt is proper to be submitted to them; and, though the rele

malice aforethought, and from a premedltated design to effect the death of the said Robert Meacham, did strike, wound, and penetrate her, the said Georgie McGraw, giving to her, the said Georgie McGraw, then and there, with the leaden bullets aforesaid, so shot forth and discharged out of the pistol aforesaid, by him, the said Thomas Milton, in and upon the body of her, the said Georgie McGraw, about one inch below the left breast of her, the said Georgie McGraw, one mortal wound, of the breadth of one inch, and of the depth of six inches, of which said mortal wound the said Georgie McGraw then and there, in the county of Hillsborough aforesaid, did languish, and languishing did live until the 29th day of March, in the year of our Lord one thousand eight hundred and ninety-six, upon which said last day, in the county of Hillsborough aforesaid, she, the said Georgie McGraw, did die. And so the jurors aforesaid, upon their oaths aforesaid, do say that the said Thomas Milton, her, the said Georgie McGraw, in manner aforesaid, feloniously, willfully, unlawfully, of his malice aforethought, and from a premeditated design to effect the death of said Robert Meacham, did kill and murder, against the peace and dignity of the state of Florida."

The sufficiency of the indictment was questioned by demurrer and motion in arrest of judgment, on the ground of a failure to allege that the death of the deceased was caused by the wound inflicted. The alleged defect in the indictment is in the latter part of both counts, where it is stated, immediately after the description of the wound, "of which said mortal wound she, the said Georgie McGraw, then and there, in the county of Hillsborough aforesaid, did languish, and languishing did live until the twenty-ninth day of March, in the year of our Lord one thousand eight hundred and ninety-six, upon which said last day she, the said Georgie McGraw, in the county of Hillsborough aforesaid, did die." This, it is said, does not exIclude the possibility that the deceased came to her death by another supervening cause. In an indictment, and especially one for murder, every material fact necessary to constitute the offense must be alleged with certainty.

Section 2893, Rev. St., provides that "no indictment shall be quashed, or judgment be arrested, or new trial be granted on account of any defect in the form of the indictment, or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment is so vague, indistinct and indefinite as to mislead the accused and embarrass him in the preparation of his defense, or expose him after conviction or acquittal, to substantial danger of a new prosecution for the same offense." And section 2892 enacts that "every indictment shall be deemed and adjudged good which charges the crime substantially in the language of the

statute prohibiting the crime, or prescribing the punishment, if any such there be, or if at common law, so plainly that the nature of the offense charged may be easily understood by the jury." Notwithstanding the language of the sections quoted, it still is essential that the indictment should expressly allege matters of substance; and it cannot be doubted that an indictment for murder must plainly show that the death of the deceased ensued from the wound described within a year and a day from the date of its infliction. All the old precedents that we have examined where death was not instant show the infliction of a mortal wound at one date, of which wound the party languished, and languishing lived until a subsequent period within a year and a day from date of infliction, and then died of said wound. An indictment should not, however, be pronounced bad merely because it is not in exact accordance with common-law precedents; still a pleader, in attempting to follow a form, should be careful not to omit anything contained therein that is essential. We have found no case holding that an indictment like the one before us was fatally defective. The cases of Lutz v. Com., 29 Pa. St. 441, and Tickle v. State, 6 Tex. App. 623, sustain it. It plainly enough appears from the allegations of each count in the indictment that the accused, on a certain date, inflicted a mortal wound upon the body of the deceased, of which mortal wound she languished, and languishing lived until a later date, within a year and day, and then died. In view of the cases cited, and under a statute like ours, we are of opinion that the indictment is good, and that the court did not err in the ruling on the demurrer and the motion in arrest of judgment.

T. Chisholm, a witness for the state, was permitted to testify to an altercation between the accused and the deceased two days before the latter was shot. During this altercation the accused cursed and struck the deceased, and stated, using his language: "I will be the death of you. You have met up with one of the G— d— meanest nigger men as ever you had anything to do with in all your days." The deceased then stated that she was going to leave him. The accused further said: "I don't care where in h― you go. You need not stop in Tampa and think I won't find you. You need not go to Jacksonville. I will find you, don't care where in the h― you go; and, when I find you, I will kill you and the son of a b I catch with you, and be hanged with Harry Singleton. I know dwell he will be hung." The acIcused and deceased were not married, but lived in the same house, and the altercation detailed occurred only two days before the killing. This testimony was objected to on the ground that it was not relevant unless shown to be a continuing difficulty to the final end, the killing.

The testimony was clearly admissible for the purpose of exhibiting the animus of the