It is not unfair to say that the court might have interpreted plaintiff in error's objection to the indictment somewhat more in accordance with the clear inferences in the Illinois cases. To one familiar with them the almost instant response to the objection would seem to be: "You mean that as the law requires ownership to be averred in the indictment it is not sufficient to lay it in a partnership without designating its members and, therefore, to designate the estate of the deceased partner instead of the persons who are his legal representatives does not fulfill the requirement.”

This objection can be met in only one of two ways: (1) By holding that designation of the partnership as owner without designating its membership is sufficient, or (2) by admitting that the designation of the membership is necessary, but holding that either a partnership did not exist because the death of Morgan terminated it and put ownership in the survivor (which would be correct because occupancy and not legal title determines ownership for purpose of determining burglary) or that a partnership with the personal representative did exist, and that the words "estate of Morgan" is a sufficient designation of the personal representative. When Mr. Justice Cartwright begins to argue that a partnership is an entity for certain purposes we quite naturally infer that he is about to declare that he is going to take the first position, but he does not; instead he finishes his argument with these words:

"Inasmuch as the funds and property of a deceased partner may be continued in the business and the representatives of the estate sustain the relation of partners, and in common acceptation the estate is a partner, we do not regard it as essential that the names of those who would be entitled on the settlement of the partnership affairs should be named." (Italics ours.)

We would have expected these italicized words to have read: "Those who constitute the partnership should be named." From the language of the court it is only fair to assume that it deems the estate of Morgan to be the name of a partner.

It is unfortunate that the court dealt in such a cursory way with the rather revolutionary idea in Illinois that a partnership is an entity. Its citation of the Pennsylvania cases (Doner v. Stauffer 1 P. & W. 198, and Richard v. Allen 117 Pa. St. 199) and the Illinois cases (Chandler v. Lincoln 52 Ill. 74, and Ramey v. Nance 54 id. 29) in support of the idea that, at least as respects its property, the partnership is an entity, to say the least, is perplexing, for the very essence of these cases is the recognition of a thoroughly established principle that the rights of partnership creditors are derivative only, and that they exist only so long as the equity of the individual partner in the partnership property exists, and when that is gone. the separate creditors of the partners may reach it free from the priority of the joint creditors. The moment the entity conception of the partnership is accepted the rights of joint creditors no longer rest upon the equities of the individual partners, but upon the duty of the entity to which credit has been given to use its property to

pay its debts. In view of the comparatively recent opinion of Justice Holmes in Francis v. McNeal 228 U. S. 695, very little comfort can be found for the entity idea from the mere fact that for the purpose of marshaling the partners' assets in bankruptcy the firm is dealt with as if it were an entity. For Justice Holmes quite aptly

says:

"No doubt these clauses taken together recognize the firm as an entity for certain purposes, the most important of which, after all, is the old rule as to the prior claim of partnership debts on partnership assets and that of individual debts upon the individual estate: Sec. 5g. But we see no reason for supposing that it was intended to erect a commercial device for expressing special relations into an absolute and universal formula-a guillotine for cutting off all the consequences admitted to attach to partnerships elsewhere than in the bankruptcy courts."

Nor is the argument drawn from the Illinois Practice Act, permitting service of process upon an agent of a partnership whose members are not domiciled in the county where it conducts business, very convincing. This is no more than what the Practice Act permits in chancery when process may be served upon absent defendants domiciled in the county by leaving a copy at the domicile with a member of the family. In truth at common law, so far as the property of the partnership is concerned, so long as they (the partners) keep out of bankruptcy it belongs to them as individuals. The only thing which gives color to the idea that it rests in an entity or quasi entity is the equitable device which gradually crept into the common law courts of protecting the equitable lien of the partners upon the property to secure them against the consequence of their joint liability for the partnership debts. Now that incorporation is so simple and inexpensive, the notion that a partnership should in the law evolve into an entity has very little to commend it.

But to get back to our problem: It is a pity that the court did not courageously say, that the reason urged for the necessity of naming the partners in an averment of property ownership in an indictment for burglary is more fanciful than real. Identity is, after all, the important thing and by naming ownership so that identity can be fixed the real value of the rule has been maintained. That the accused may be one of the partners is, of course, a very remote possibility, even more remote than that he had a right or license to enter the property, the negative of which need not be averred.

What the court has done is to render a decision which is squarely in the teeth of one of the important historic reasons for the rule, without repudiating the reason. The entity of the partnership and the personification of the estate of the deceased partner does not advance the court one step in meeting this reason. The possibility that the accused may be a partner and therefore with a right of forcible entry, or that he may be the or a personal representative of the deceased exists whatever may be one's notion of the nature of a partnership or estate. The legal formalist may justly

criticize both the reasoning and the result reached in this case. We do not criticize the result, but it would have been much more satisfactory had the court taken the advanced ground that, as the question was still open in Illinois (People v. Dettmering notwithstanding, for there the error was a variance between the proof and the indictment-it could with reason be said it is one thing to aver ownership in Smith & Company without more and quite another to aver ownership in Smith and Black, co-partners doing business as Smith & Company, and then prove ownership in Smith & White doing business as Smith & Company)—the court would not follow a rule, even though adopted in other jurisdictions, the reason for which did not commend itself to its judgment. The reason has at best little force and the very little good it might subserve is far outweighed by the mischief it provokes in the administration of criminal justice. C. G. L.

CRIMINAL PROCEDURE-INDICTMENT ALLEGATION OF OWNERSHIP IN CHARGE OF BURGLARY.-In People v. Zangain 301 Ill. 299, 133 N. E. 783, it is held (Thompson, Dunn and Duncan, JJ., dissenting) that the description of the entered premises as "the store building of James A. Hendricks and the estate of H. H. Morgan, deceased, operating under the firm name of Morgan & Hendricks" is a sufficient allegation of ownership in an indictment for burglary. The position of the majority is that a partnership may be deemed a legal entity in respect of property and that, therefore, "inasmuch as the funds and property of a deceased partner may be continued in the business and the representatives of the estate sustain the relation of partners, and in common acceptation the estate is a partner, we do not regard it as essential that the names of those who would be entitled on the settlement of the partnership affairs should be named." The dissenting opinion takes the stand that the estate is not a legal entity capable of property ownership and that, as regards the partnership, ownership should be alleged as in the surviving partner, prior to a settlement and, after settlement, in the individuals, nominatim, actually comprising the firm.

So far as the question of substantive law is concerned, the minority have much the better of the argument. And if what is required here is an accurate statement in terms of that law, then the allegation is clearly insufficient. Previous decisions of the court, notably People v. Brander 244 Ill 26, have insisted upon such accuracy. We prefer to interpret the present decision, however, as a relaxation of the strictness hitherto obtaining in this respect rather than as a deliberate pronouncement on a question of legal personality. The fact that the court refers to the estate as a partner "in common acceptation" is an indication that something short of conveyancing precision is regarded as sufficient. It would have been less confusing, naturally, if the court had avowedly adopted the view that a description in popular language, even though not wholly an accurate one, would satisfy the requirements of allegation. But,

even as it is, the case is bound to exercise a salutary influence toward the elimination of an inviting species of unmeritorious objection.

The truth is that the requirement as to the allegation of ownership, so far at least as regards the ordinary case of burglary, larceny or embezzlement, should be abolished by statute. In England, reform in this direction, was begun by enactment, as long ago as 1826, of the provision (7 Geo. IV, c. 64, s. 14) that in the case of property "belonging to or in possession of more than one person, whether partners in trade, joint tenants, parceners or tenants in common, it shall be sufficient to name one of such persons and to state such property to belong to the person so named, and another or others, as the case may be: ... and this provision shall be construed to extend to all joint stock companies and trustees." (Archbold's Crim. Pl. Ev. & Pr. 23 ed. p. 61.) But a much more radical measure has since gone into effect By rule, under the Indictments Act of 1915, it is declared that "the description of property in a count in an indictment shall be in ordinary language and such as to indicate with reasonable clearness the property referred to, and if the property is so described it shall not be necessary (except when required for the purpose of describing an offense depending on any special ownership) to name the person to whom the property belongs on the value of the property." (Rule 6-(1).) The existing requirement "at most can only serve to help identify the property which may easily be otherwise sufficiently identified to advise the defendant of the acts charged against him, and to prevent prosecution again for the same offense." (Professor William G. Hale in ILL. LAW REV. XI 321.) In the majority opinion it is said that the substantial test of sufficiency, in the present regard, is whether "the ownership is so alleged that an acquittal or conviction under the indictment can be pleaded in bar of a subsequent prosecution for the same offense." This necessity of laying a basis for a subsequent defense of former jeopardy is the justification urged for the retention of a host of trouble-engendering rules of criminal procedure. But it is a ground which is much overrated. Dealing with the statutory indictment for the "confidence game," the Supreme Court itself has done much towards putting this argument in its proper place. To the contention, advanced in People v. Brady 272 Ill. 401, that in such an indictment the nature and cause of the accusation are not sufficiently stated to enable the defendant to avail himself of the judgment, in bar of a future prosecution, it was answered: "Under the present practice, whether the indictment is for the same offense as that charged in a former indictment under which there has been a final judgment is not determined by an inspection and comparison of the indictments, under a plea setting up the former judgment in bar. The defense of former acquittal or conviction may be made under the plea of not guilty, and on the trial the party accused and the particular offense may be shown by parol testi

mony," citing Hankins v. People 106 Ill. 628; Swalley v. People 116 id. 247; Bartell v. United States 227 U. S. 427; Morton v. People 47 Ill. 468.

Until the legislature shall see fit to change the rule, the court, in applying it, cannot better serve the interests of criminal justice than to be guided, as here, by the maxim ‘apices juris non sunt jura.' R. W. M.

MORTGAGES-ABSOLUTE DEED A MORTGAGE-FORFEITURE IN EQUITY-LACHES WHEN IS A FREEHOLD INVOLVED WITHIN THE MEANING OF THE ILLINOIS PRACTICE ACT?-The case of Robnett v. Miller 303 Ill. 515, 135 N. E. 705, was a bill to have a deed declared a mortgage. A complication was introduced by a cross-bill to set aside, as a cloud upon the title, certain deeds to some of the property that had been given by the complainant in the original bill to his son. This complication, however, created no new element in the case, for if the contention of the complainant in the original bill were sustained, then, of course, the prayer of the cross-bill would be denied, and vice versa.

The court held that the evidence was not as clear as the law required it should be in order to declare a deed absolute in form a mortgage. The complainant, in the original bill, it seems, relied upon the circumstance of a contract given by the grantee of the property to the complainant, whereby the former undertook to convey the property to the complainant upon the performance of certain conditions which the complainant did not perform. It was insisted, apparently, by the complainant, that unless equity held that this arrangement amounted to a mortgage, equity would be in a position of enforcing a forfeiture, but the court rightly holds that equity cannot shut its eyes to the contract the parties made, and if the contract is in effect a mere re-purchase agreement, and the parties by their written language expressed such intention, equity should not assume to declare it a mortgage instead. In this decision, the court is merely adhering to its other decisions upon the point that parties to a contract may provide for the forfeiture of earnest money or moneys paid, as damages, on failure to perform within the stipulated time. (Lang v. Hedenberg 277 Ill. 377; Haynes v. Carey 287 Ill. 277-279.)

On the merits, therefore, it must be seen, the principal case is correct, and it is valuable as throwing light upon this question: Suppose one sells property and includes in the contract of sale an option to repurchase in a certain time: will equity, under guise of declaring that transaction a mortgage, interfere with the vendee's insistence upon having the title free of the repurchase agreement, if the election to repurchase was not availed of in time? Clearly, the principal case is authority for holding that equity will not stretch the "absolute deed a mortgage" rule to such a breaking point.

1. But such testimony has always been admissible for, on the plea of autrefois acquit or convict, identity of person or offense was issuable matter of fact. (Hale P. C. II 243.)