Where one partner, without authority, verbally contracted to sell partnership land, and gave possession, it was held that this bound him as to his share. Crain v. Rapple (1891) 22 Ont. Rep. 519.

A mortgage of partnership land in the firm name, made by one partner, mortgages his interest. Sutlive v. Jones (1878) 61 Ga. 676; Printup Bros. v. Turner (1880) 65 Ga. 71 (stating the rule); Cottle v. Harrold (1884) 72 Ga. 830; Baker v. Lee (1897) 49 La. Ann. 874, 21 So. 588.

In Chavener v. Wood (1866) 2 Or. 182, it was held that a mortgage of partnership land signed in the firm name by one partner, with the assent of the other, was a legal mortgage as to the interest of the signer, and an equitable mortgage as to the interest of the other partner; and that a later mortgage by both partners individually, to a third party without notice other than the record of the first mortgage, was prior to the first mortgage, to the extent of the interest of the partner who did not sign the first mortgage.

IV. Confession of judgment. Where a partner confesses judgment against the firm without authority, the judgment is good as to him. North v. Mudge (1862) 13 Iowa, 496, 81 Am. Dec. 441; Rhodes v. Amsinck (1873) 38 Md. 345 (stating the rule); Morgan v. Richardson (1852) 16 Mo. 409, 57 Am. Dec. 235; Green v. Beals (1804) 2 Caines (N. Y.) 254; Crane v. French (1828) 1 Wend. (N. Y.) 311; Grazebrook v. M'Creedie (1832) 9 Wend. (N. Y.) 437 (stating the rule); St. John v. Holmes (1839) 20 Wend. (N. Y.) 609, 32 Am. Dec. 603; Gerard v. Basse (1784; Pa. Com. Pl.) 1 Dall. 119, 1 L. ed. 63, 1 Am. Dec. 226; Bitzer v. Shunk (1841) 1 Watts & S. (Pa.) 340, 37 Am. Dec. 469; York Bank's Appeal (1860) 36 Pa. 458; Heft v. Basford (1885) 2 Pa. Co. Ct. 278.

Contra: Hickman v. Branson (1857) 1 Houst. (Del.) 429, and Seal v. Seal (1857) 1 Houst. (Del.) 516, supra, III. It was said in Davenport Mills Co. v. Chambers (1896) 146 Ind. 156, 44 N. E. 1109: "It is a well-settled doc

trine that a partner, by virtue of his general power to act as agent of the firm, has no authority to confess a judgment against his partners, and, if judgment be entered upon such confession, it will be void as to them, but valid as to him."

V. Contrary doctrine.

There are a few cases opposed to the general rule.

In Fisher v. Pender (1860) 52 N. C. (7 Jones, L.) 483, it was held that an instrument, in the form of a sealed promissory note, given by one partner in the partnership name, and for a partnership debt, but without any authority to bind the other partners by a deed, is not the bond of the partner who signed it. The court reviews Elliot v. Davis (1800) 2 Bos. & P. 338, 127 Eng. Reprint, 1314, 5 Revised Rep. 616 (where the signer meant the instrument to be his several bond and the joint and several bond of the firm) and said: "It is apparent from this case that one partner may bind himself by deed, by signing it in the name of the partnership, provided he seal and deliver it as his own deed, as well as that of the partnership. But, in order to have this effect, it must be signed, sealed, and delivered as the deed of him who is to be bound by it.. . So, one partner may bind himself by deed for the firm, and he will be bound if he sign, seal, and deliver it as his own, though he may also intend that it shall operate as the deed of the partnership; but it would be against principle to hold him bound. by an instrument which, upon its face, showed that he did not sign, seal, and deliver as his own individual deed, but as the deed of the partnership of which he was a member."

So, in Sellers v. Streator (1858) 50 N. C. (5 Jones, L.) 261, it was said that, "though one partner cannot bind the firm by deed, yet the deed will not be that of the partner who executes it."

Under a statute (of Wyoming) requiring that every partner should execute certain mortgages, it was held that a mortgage on cattle purporting to be executed by a firm, which was

VI. Parties.

Under the old law, an action declaring a joint liability would not support a judgment against only one of the defendants. Layton v. Hastings (1837) 2 Harr. (Del.) 147; Morris v. Jones (1845) 4 Harr. (Del.) 428; Herzog v. Sanders (1883) 61 Md. 344; Hart v. Withers (1829) 1 Penr. & W. (Pa.) 285, 21 Am. Dec. 382; Lucas v. Sanders (1841) 26 S. C. L. (1 McMull.) 311.

In Herzog v. Sawyer (1883) 61 Md. 344, where one partner executed a sealed instrument in the firm name without authority, and the firm was sued as upon a joint covenant, and the signing partner pleaded non est factum, it was held that this was a good plea.

Recovery against one partner alone, who, in the firm name, executed an instrument under seal, cannot be had in covenant against all. Hart v. Withers (1830) 1 Penr. & W. (Pa.) 283, 21 Am. Dec. 382.

But where the members of a firm are sued upon a joint obligation, and it appears that the signer signed without authority, and that his copartners are not bound, judgment may be entered

against him alone, where the statutes permit a joint judgment against such part of those sued jointly as are shown to be liable, or permit a several judgment where the facts make it proper; that is to say, where a separate action might have been maintained. Lewis v. Clarkin (1861) 18 Cal. 399; Brooke v. Glide (1919) Cal. App. -, 179 Pac. 595; Gunderson v. Hasterlik (1902) 100 Ill. App. 429; Wiggin v. Lewis (1853) 12 Cush. (Mass.) 486; Taft v. Church (1894) 162 Mass. 527, 39 N. E. 283; Parker v. Jackson (1852) 16 Barb. (N. Y.) 33; Harrington V. Higham (1853) 15 Barb. (N. Y.) 524; Hartney v. Gosling (1902) 10 Wyo. 346, 98 Am. St. Rep. 1005, 68 Pac. 1118, 22 Mor. Min. Rep. 239.

Under a statute providing that "judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants," where A buys goods on his own account, and later tells the seller to charge the goods to A & B, in a suit against A & B for goods sold and delivered, if A had no authority. to bind B, the judgment may be renLewis v. dered against A alone.

Clarkin (Cal.) supra.

An action in assumpsit against all the partners, on a guaranty executed in the firm's name by one of them, will justify a recovery against the executing partner, under a statute providing that "if an action be brought against two or more defendants, and it shall appear upon the trial that one or more of the defendants is not jointly liable with the others upon the contract or cause of action sued upon, judgment shall be given against such as appear to be liable, and in favor of the others." Gunderson v. Hasterlik (1902) 100 Ill. App. 429, supra.

Under the modern practice, if the holder of a note in the name of a firm sues both members of the firm thereon, and it appears that the firm name was signed without authority, the plaintiff may take judgment against the signer, dismissing his action against the other member of the firm. Silvers v. Foster (1872) 9 Kan. 56. See also the reported case (BON

The facts are stated in the opinion Messrs. Paul W. Hoggins and John Hilldrop for appellants.

Mr. Charles L. Cornelius, Assistant Attorney General, for the State.

Lansden, Ch. J., delivered the opinion of the court:

The plaintiffs in error, who are man and wife, were indicted and convicted in the criminal court of Davidson county for violating the so-called Bone Dry Law (Acts 1917, chap. 12).

In February, 1918, information came to the police officers of Nash

ville, Tennessee, that an automobile load of whisky was en route from Hopkinsville, Kentucky, to Nashville. Police officers stationed themselves on the Hopkinsville road near Goodlettsville, in Davidson county, and blockaded the road and arrested plaintiffs in error. They searched the automobile and found "six or eight" sacks in the automobile, each containing about 20 20 quarts of whisky.

The contention is made for Mrs. Morton that the proof fails to show

that she had any knowledge of, or interest in, the whisky, and all that is shown is that she was riding in an automobile with her husband. It is said that she was under the legal duress of her husband, and, although he is guilty, she is not, because her presence in the automobile will be attributed by the law to the duress of the husband. Many cases are cited in the brief of learned counsel for this proposition, but in the view which we take of the case it is not necessary to review them all. Shacklett v. Polk, 4 Heisk. 105; Lowry v. Naff, 4 Coldw. 370.

Counsel cites the above cases together with many more, which hold in substance that the legal identity of the wife is merged in that of the husband at common law. The cases cited deal with estates of married women, and contain the general statement to the foregoing effect.

It was also the rule at common law that a married woman was not responsible for crimes committed in the presence of her husband, except murder and treason. However, for crimes committed out of the presence of the husband, she was as cap

Husband and wife-liability of married woman for crime.

able of and as responsible for as if she were single. If she committed a crime in the presence of her husband, excepting murder and treason, it was presumed that she did so under constraint by him, and she was, therefore, excused and he was presumably guilty. State v. Cleaves, 59 Me. 298, 8 Am. Rep. 422; Mulvey v. State, 43 Ala. 316, 94 Am. Dec. 684.

Evidence

guilt-rebuttal.

This case cited declares that it was the intention of the legislature to completely emancipate married women, except where such emancipation either is not permitted by a proper construction of the act, or the court is forbidden by sound public policy to attribute such an intention to the legislature. The public policy of the state with respect to the disability of -status of wife. the wife, because of

the fact of marriage, is declared by the act referred to, and common law is completely abrogated. See also 8 R. C. L. p. 65; 12 Cyc. p. 161.

If the presumption existed in this state that the wife was acting under the duress of her husband, it would be rebutted by the facts of this case. The evidence required for such rebuttal is very slight. There is nothing to show the size of the automobile employed by the Mortons, but it is shown that it contained "six or eight" sacks of whisky, containing 20 quarts each. The automobile with the whisky was apprehended by some means not disclosed, and the police officers at Nashville were notified that it was moving from Hopkinsville to Nashville, loaded with whisky. We think Mrs. Morton must have known of the presence of the whisky in the automobile, and her guilty knowledge is not attributable to any- Criminal lawthing other than the knowledge of quantity of whisky. She did not testify in the case, and

guilt.

there is nothing to indicate that she was not a participant in the offense of her husband. She rests her case exclusively upon the legal presump

tion that she was acting under the presumed duress from her husband. We hold this is not sufficient. The case is therefore affirmed.

a. Acts committed under coercion by husband.

At common law, a married woman is not criminally responsible for acts committed under coercion by her husband. This rule is usually stated in connection with the rule as to presumptions discussed in subdivision II. infra, and is supported by the cases there cited. This rule of the common law is expressly prescribed by statutes in some jurisdictions. See, particularly, the Arkansas and Georgia statutes, infra, III. The contemporary statutes should always be consulted in an investigation of this question. The present note deals with statutes only so far as they have been the subject of judicial interpretation.

The existence of coercion is presumed, according to the general rule, where the criminal acts were committed in the husband's presence (infra, II. a); but in some cases no reliance has been placed upon the presumption, coercion being treated as an existing fact in the case, and its effect considered. As above stated, coercion by her husband relieves a married woman of liability for her criminal acts. Up

IV. Harboring husband who is a crim. inal, 281.

V. Receiving stolen goods from husband, 281.

VI. Stealing from husband, 282. VII. Conspiracy with husband, 282. VIII. Idleness, 282.

IX. Miscellaneous, 282.

X. Proof of marriage, 282.

on the trial of an indictment for housebreaking in Reg. v. Laugher (1846) 2 Car. & K. (Eng.) 225, the court refused to admit a confession made by the accused in the presence of her husband, which exculpated him from the crime, the court stating that care ought to be used not to admit anything which may have been said in consequence of the husband's coercion. In Reg. v. Dykes (1885) 15 Cox, C. C. (Eng.) 771, a wife was found by the jury to have acted under the husband's compulsion, in committing robbery; therefore, the court held her not responsible for the crime. A wife who acted under the coercion of her husband, and did not purposely inflict any violence upon the prosecutor, cannot be found guilty of feloniously wounding the prosecutor. Reg. v. Smith (1858) 1 Dears. & B. C. C. (Eng.) 553, 27 L. J. Mag. Cas. N. S. 204, 4 Jur. N. S. 395, 6 Week. Rep. 471, 8 Cox, C. C. 27. In the prosecution of a married woman for the larceny of goods, which the evidence showed were found in the house of the prisoner's husband, who was a blind man, and which, when they were found, the prisoner said she had purchased a long time before, the question was left