"Still less can authority be admitted in one partner to sell the entire property of the firm, when the object of the firm was not trade, buying, and selling, but a business to which the continued ownership of the property was indispensable. An assignment is for the purpose of paying the debts; but a sale principally for division, as was this case, has not even that apology. Such a power in one of two copartners is asserted by no adjudicated case. It is directly in conflict with the purposes of the partnership. Instead of a presumption of agency to make such a sale, the presumptions are all the other way." The sale to defendant, in this case, was not for the purpose of paying firm liabilities, nor for any other legitimate purpose; and defendant having refused, on demand of plaintiff, to surrender possession of the property he had wrongfully obtained, the plaintiff had a right to maintain this action.

It is well settled that where one joint owner of personal property sells or converts it to his own use, the other may sue in trover for its value: Agnew v. Johnson, 17 Pa. St. 373, 378; 55 Am. Dec. 555. As stated in that case, the reason why one partner cannot, as a general rule, maintain trover against the other is, that both are equally entitled to possession, and the possession of the one is the possession of both; but if one deliver the property wrongfully to a stranger, for purposes inconsistent with the uses for which it was designed, and such stranger denies the title of the other, and claims the exclusive possession and ownership, the reason of the rule ceases, and trover may be maintained. We are of opinion that, upon the facts established by the special verdict, plaintiff was entitled to judgment thereon for the amount found by the jury, and the court therefore erred in entering judgment non obstante veredicto.

Judgment reversed, and judgment is now entered in favor of plaintiff on the verdict for $1,408, the amount found by the jury, with interest from the date of the verdict, and costs.

PARTNER HAS AUTHORITY TO DISPOSE OF PARTNERSHIP PROPERTY AND EFFECTS in good faith, and for any and all purposes and objects of the partnership, and in the course of trade: Wright v. Boynton, 37 N. H. 9; 72 Am. Dec. 319.

AM. ST. REP., VOL. VL- 51

JACOBS v. COMMONWEALTH.

[121 PENNSYLVANIA STATE, 586.]

CRIMINAL LAW.- EVIDENCE AS TO TEMPERAMENT, DISPOSITION, AND CONDITION OF MIND of the defendant is not admissible on the trial of an indictment for murder, where insanity at the time of the homicide is not set up as a plea.

INDICTMENT for murder. The opinion states the case.

B. Frank Eshleman and J. Hay Brown, for the plaintiff in

error.

William D. Weaver, district attorney, and E. K. Martin, for the defendant in error.

GORDON, C. J. That the verdict in this case, under the instructions of the court, was right, and warranted by the facts proved, no one pretends to deny. Neither is it contended that Jacobs, the defendant, was insane, in the legal acceptation of that word. That he was able to know and to distinguish between right and wrong is not gainsaid. That he had sufficient time for deliberation before he committed the fatal act, and that he acted, if not wholly without provocation, yet certainly without enough to excuse in the slightest degree so barbarous an act, the jury, on sufficient evidence, have found. Being thus relieved of all doubt as to the sufficiency of the evidence and the justness of the verdict, all we have to do is to consider those technical assignments of error which have been presented to us by the learned counsel for the plaintiff in error. These specifications are three in number, as follows:

"1. The court erred in overruling the following question put to Dr. Joseph Furness: 'Were you able to judge, in your intercourse with him, what his temperament, disposition, and condition of his mind was?""

"2. The court erred in overruling the following question put to the same witness: 'State what are the quality and characteristics of defendant's mind as to excitability.""

"3. The court erred in overruliug the following question put to the same witness: 'Please state whether or not, in your judgment, there were such controlling influences in the mind of James H. Jacobs, the defendant, that it was not conscious of its purposes, and on account of those influence was incapable of deliberating or premeditating; and if so, what were those controlling influences?""

The questions thus proposed were properly rejected, because, had the required answers been received, the court could have done nothing else than instruct the jury to disregard them. They were intended, not to establish the fact that Jacobs, when he committed the homicide, was constrained by an insane impulse which for the time destroyed his free agency, but only to show that he was of an excitable temperament; that is, as we take it, that he was a man of quick temper, and when his anger was aroused, his self-government was for the moment overcome, and he was at such times liable to commit acts which his cooler judgment would not approve. But a rule which would allow the justification of crime on such pretext would utterly pervert and subvert the moral order of things. It may do well enought when applied to the brute world, where there neither is nor can be such a thing as moral obligation, and where individual impulses are regarded as mere instincts, without mental control, but it will not do for the government of man, to whom God has given a reasonable soul, by which, if he will, all his passions may be controlled. And why should one man be excused for the results of passion, and not another? The phlegmatic man may be moved to anger as well as the most nervous; the only difference is, that it requires more to affect the one than the other; but when passion is once aroused in either, it is the same unreasoning and unreasonable power. Why, then, should it not excuse crime in the one as well as in the other? If the murder of the latter may thus be reduced in degree, why not that of the former? Questions such as these at once show the utter inapplicability of the rule contended for, hence it must be rejected. The main object of the penal code is to compel men to restrain their evil passions and desires, hence the want of such restraint is rather an aggravation of than an excuse for crime.

But we need not dwell longer upon this subject, for the underlying principle of the above-recited assignments has been fully considered and disposed of by this court, in the case of Small v. Commonwealth, 91 Pa. St. 304, in which we held that the evil dispositions of a defendant were not admissible in evidence for the purpose of excusing or mitigating his crime. We also refer to the forcible and pertinent remarks of Mr. Justice Lowrie on a similar proposition in the case of Keenan v. Commonwealth, 44 Id. 55; 84 Am. Dec. 414.

The judgment of the court of oyer and terminer is now

affirmed, and it is ordered that the record be remitted to the said court for the purposes of execution.

EVIDENCE OF DEFENDANT'S GOOD CHARACTER is always admissible in criminal prosecution: Hopps v. People, 31 Ill. 385; 83 Am. Dec. 231; People v. Garbutt, 17 Mich. 9; 97 Am. Dec. 162.

GREGORY V. COMMONWEALTH.

[121 PENNSYLVANIA STATE, 611.J

PAYMENT, PRESUMPTION OF FROM LAPSE OF TIME. — ALL DEBTS EXCEPTED Out of Statute OF LIMITATIONS, UNCLAIMED and unrecognized for twenty years, are, in the absence of sufficient explanatory evidence, presumed to have been paid.

PRESUMPTION OF PAYMENT AFTER LAPSE OF TWENTY YEARS is an arti ficial and arbitrary rule of law, and, unlike the statute of limitations, is not a bar to an action on the original contract, and therefore a new promise is not necessary to sustain an action upon the debt. This being so, it is of no consequence that the admission of non-payment is accompanied by a refusal to pay.

FACTS AND CIRCUMSTANCES RELIED UPON TO REBUT PRESUMPTION of pay. ment from lapse of time must necessarily be within twenty years before the suit is brought, and the evidence to rebut such presumption must be satisfactory and convincing, especially when suit is not brought until after the debtor's death.

EVIDENCE ADMISSIBLE TO SHOW THAT DEBT IS IN FACT UNPAID may consist of the defendant's admissions made to the creditor himself, or to his agent, or even to a stranger. But an admission will not be as readily implied from language casually addressed to a stranger as when addressed to the creditor in reply to a demand for payment of the debt. WHETHER MATTERS SOUGHT TO BE ESTABLISHED IN REBUTTAL OF PRESUMPTION of payment from lapse of time are true, is a question for the jury; but whether the facts and circumstances relied on, if true, would amount to a rebuttal of the presumption, is necessarily a question of law for the court.

John Stewart and George A. Smith, for the plaintiffs in error.

W. U. Brewer, and John P. Sipes and J. Nelson Sipes, for the defendants in error.

CLARK, J. This is a proceeding by scire facias upon a recognizance, taken in the orphans' court of Fulton County, in the partition of the real estate of Joseph Gregory, who died intestate some time prior to the year 1856. The real estate of the decedent was, on the 13th of January, 1866, accepted at the valuation by James Gregory, and the recognizance in suit

was given to secure the share of John Gregory, who at that time, and until his decease in 1878, resided in the state of Indiana.

No suit was brought, nor does it appear that any specific demand for payment of the money secured by the recognizance was made, until after the death of the conusor, James Gregory, in 1887. A period of twenty-one years and three months having intervened, the executors of the last will and testament of James Gregory, deceased, interpose the presumption of payment which arises from this great length of time. Their contention is, that this delay in the collection of the recognizance has not been in any way explained, and that the evidence does not establish any facts, by way of admission or otherwise, sufficient to rebut the presumption that the debt has been discharged.

All debts excepted out of the statute of limitations, unclaimed and unrecognized for twenty years, in the absence of sufficient explanatory evidence, are presumed to have been paid. This presumption is an artificial and arbitrary rule of the law, derived by analogy from the English statute of limitations; it originated in equity, but was afterwards engrafted into the common law, and has since been steadily maintained. It is not, like the statute of limitations, a bar to an action on the original contract; therefore, a new promise is not necessary to sustain the suit. Any competent evidence which tends to show that the debt is in fact unpaid is admissible for that purpose. The evidence may consist of the defendant's admissions made to the creditor himself: Eby v. Eby, 5 Pa. St. 435; or to his agent, or even to a stranger: Morrison v. Funk, 23 Id. 423; Reed v. Reed, 46 Id. 239; but an admission will not be as readily implied from language casually addressed to a stranger, as when addressed to the creditor in reply to a demand for the debt: Bentley's Appeal, 99 Id. 500. It is of no consequence that the admission of non-payment is accompanied by a refusal to pay; the action is not founded on a new promise, but on the original indebtedness; the question, as against the presumption, is, whether or not the debt is in fact unpaid.

The facts and circumstances relied on to rebut the presumption must necessarily be within twenty years before suit is brought, and, as the recollection of the exact words and import of an oral admission must necessarily become more indistinct with the lapse of years, the force of such an admission will in general be lessened as the time from its occur