appellant, who bought on the faith of his declarations, that it was the property of the firm. It is insisted, moreover, that notice to Simmons that the property was about to be sold as the property of Lewis was notice to the firm, and that his acquiescence in the sale, and his declarations in respect to the title, not only estopped him, but the firm of which he was a member as well.

It appears from the pleadings that both Lewis and Long were out of the state at the time, and had no knowledge of the levy and sale; that, although the firm had ceased carrying on its business, the debts had not yet been paid, nor the partnership account settled, nor the partnership property disposed of.

It is undoubtedly true that each partner is, in a qualified sense, the agent of his copartners in relation to the business of the firm, and that his acts and declarations in reference to the business in which he is at the time employed, within the scope of the partnership, are the acts and declarations of the firm; but one partner cannot, by his acts or declarations, in the absence of the others, deprive them, or either of them, of their interest in the firm property: Rush v. Thompson, 112 Ind. 158; Bays v. Conner, 105 Id. 415; Hickman v. Reineking, 6 Blackf. 387; Union National Bank v. Underhill, 102 N. Y. 336; Kaiser v. Fendrick, 98 Pa. St. 528.

The agency which exists between partners pertains only to the business of the firm, and the declarations of one partner which bind the others are such as pertain to and are made while employed about the business of the partnership: Boor v. Lowrey, 103 Ind. 468; 53 Am. Rep. 519; Winchester etc. Co. v. Creary, 116 U. S. 161; Avery v. Rowell, 59 Wis. 82.

Certainly, one partner cannot admit away the interest of his copartners in the partnership property, or transfer the interest of one partner to the individual creditors of the other in the absence of both; nor can he, by his declarations, make that a partnership transaction which does not appear to be such: Blaker v. Sands, 29 Kan. 551.

Whatever the motive of Simmons may have been in asserting that the property belonged to Lewis individually, the declaration was not made during the progress and within the scope of the partnership business.

While one partner may, under certain circumstances, in the absence of the others, dispose of the firm property or pledge it for a firm debt. he cannot, by an admission in the

absence of the other partners, convert that which was the property of the firm into the property of one of its members, and thus divert it from the payment of partnership debts: Bond v. Nave, 62 Ind. 505.

Neither can one member of a suspended firm, by standing by, estop the other members, who are absent, from asserting their interest in the partnership property.

The present case is not within the principle which ruled Griswold v. Haven, 25 N. Y. 595, 82 Am. Dec. 380, and cases of that class. As stated in the head-note to that decision, one of a firm of warehousemen falsely represented to a person who advanced money on the faith of the representation that the one to whom the money was advanced, and to whom he had given receipts in the firm name, had on storage a certain quantity of grain. It was held that where the authority of an agent or partner depends upon some fact outside the terms of his power, and which from its nature rests peculiarly within his knowledge, his principal or firm is bound by his representation, though false, as to the existence of such fact.

The decision in the case cited is controlled by the fact that the representation was made in connection with an act which the partner was authorized to perform, and the fact misrepresented formed part of and was within the power of the partner whose representation was relied on. Where a party, dealing with one partner in respect to a matter which corresponds in every particular with the business of the firm, relies upon the representation of the partner as to any fact pertinent to the transaction in hand, which rests peculiarly within the knowledge of the partner, the firm is bound.

Declarations made by an agent or partner in response to timely inquiries relating to matters under his charge, in respect to which it is part of his business in the usual course to act or impart information, bind the principal or firm: Xenia Bank v. Stewart, 114 U. S. 224.

It is, however, no part of the business of partners to enlarge, deny, or affect the respective interests of members of the firm in the partnership property by declarations or admissions in the absence of each other. They are not constituted agents for each other for any such purpose. The agency extends merely to the conduct of the business of the firm: Woodruff v. Scaife, 83 Ala. 152.

It is not to be doubted but that partnership assets may be transferred in payment, or to secure an individual debt of one

partner, but this can only be done while the property is in the possession of the owners, and by the consent of all the partners: Fisher v. Syfers, 109 Ind. 514; Carver Gin etc. Co. v. Bannon, 85 Tenn. 712.

Of course, if one, seeing his property about to be levied on as the property of another, disclaims any ownership therein, or stands by and acquiesces in the sale, he will be estopped to assert a title as against an innocent purchaser. But a disclaimer by one partner cannot estop the others, unless it is known to and ratified by them, nor can the acquiescence of one bind the others who had no notice. Caldwell v. Auger, 4 Minn. 217, 77 Am. Dec. 515, is not in conflict with this conclusion.

While the answer may have been good, if no other interest than that of Simmons had been involved, since it was not good as an answer to the complaint by Lewis, Simmons, and Long, as partners, the demurrer was properly sustained. The complaint was sufficient. It was not necessary that the plaintiffs should have tendered the money paid to the constable by Williams. The firm received no benefit from the money. Nor does it make any difference that the plaintiffs had a remedy at law to replevy the property carried away. They have a right to invoke the aid of a court to enjoin the defendant from tearing down their engine and boiler and carrying it away, to the disruption and detriment of their property. The judgment is affirmed, with costs.

LEVIES UPON PARTNERSHIP EFFECTS FOR PERSONAL DEBTS OF INDIVIDUAL MEMBERS OF FIRM create no lien upon those effects, and are, in fact, as nugatory as though levied upon the property of a stranger: Richard v. Allen, 117 Pa. St. 199; 2 Am. St. Rep. 652, and see note 655.

LEVY AND SALE ON EXECUTION OF PARTNERSHIP PROPERTY FOR INDIVIDUAL DEBT OF ONE PARTNER must be of an undivided interest in the chattel corresponding to the debtor's share in the firm: Nixon v. Nash, 12 12 Ohio St. 647; 80 Am. Dec. 390; Hubbard v. Curtis, 8 Iowa, 1; 74 Am. Dec. 283; Moore v. Pennell, 52 Me. 162; 83 Am. Dec. 500, and note 502.

BILL OF SALE BY ONE PARTNER TO SECURE HIS PRIVATE DEBTS CANNOT AFFECT TITLE OF COPARTNER in partnership chattels, unless sanctioned by him, and the vendee takes merely the individual interest of his vendor, subject to the rights of the other partner and partnership creditors; nor has such vendee the right to possession or division, while partnership debts exist: Kingsbury v. Tharp, 61 Mich. 216; but the individual interest of partner in partnership effects is attachable: Trafford v. Hubbard, 15 R. I. 326; and such interest may be sold for his separate individual debts: Harris v. Phillips. 49 Ark. 58; and in Arkansas, it is held that a partner has no such beneficial interest in firm's chattels as will be bound by general lien of an execution

against him individually: Id. Yet where real estate is bought with partnership funds for partnership purposes, and is used as such, and subsequently one partner conveys an undivided moiety to a trustee to secure individual debts, the trustee takes title to such undivided moiety, subject to the prior implied trust, in favor of partnership creditors; and to the balances found due the copartners on a partnership accounting; nor can a sale by such trustee be enjoined, because the purchaser at such trustee's sale would hold realty subject to such prior equities: Cunningham v. Ward, 30 Va. 572.

ONE PARTNER CANNOT BIND FIRM BY ACT OR DECLARATION CLEARLY WITHOUT the scope of the partnership business: Heirn v. McCaughan, 32 Miss. 17; 66 Am. Dec. 588; Lockwood v. Beckwith, 6 Mich. 168; 72 Am. Dec. 69; Western Stage Co. v. Walker, 2 Iowa, 504; 65 Am. Dec. 789; Rush v. Thompson, 112 Ind. 158.

HEUSTON V. SIMPSON.

[115 INDIANA, 62]

ATTENDING PHYSICIAN MAY NOT, IN ACTION TO SET ASIDE WILL, TES TIFY, against objection, as to mental and physical condition of the testator, nor divulge, in such action, any information acquired by him while in the necessary discharge of his professional duty: Indiana R. S. 1881, Bec. 497.

F. L. Prow, G. W. Friedley, and J. Giles, for the appellant.

M. F. Dunn, G. G. Dunn, W. H. Edwards, and T. Huston, for the appellees.

ELLIOTT, J. This action was brought by the appellant to set aside the will of his deceased brother, David Heuston. The executor and devisees were made defendants.

On the trial, two of the physicians who attended the testator in his last illness were called as witnesses, and the appellant proposed to prove by them the mental and physical condition of the testator. The appellees objected, on the ground that an attending physician cannot testify as to the result of an examination made by him in a professional capacity, nor as to any facts observed or learned by him while acting in that capacity. The objection prevailed.

Appellees defend the ruling of the trial court upon the authority of section 497, Revised Statutes of 1881, and the case of Masonic Mut. Ben. Ass'n v. Beck, 77 Ind. 203, 40 Am. Rep. 295. In that case, the court quoted with approval from the case of Edington v. Mutual Life Ins. Co., 5 Hun, 1, this language: "The secrets of the sick-chamber cannot be revealed,

because the patient was too sick to talk, or was temporarily deprived of his faculties by delirium or fever, or any other disease, or because the physician asked no questions. The statute seals the lips of the physician against divulging in a court of justice the intelligence which he acquired while in the necessary discharge of his professional duty." The last sentence in the extract we have made from Edington v. Mutual Life Ins. Co., supra, correctly declares the law.

If the knowledge is acquired in the chamber of the patient, and in the discharge of professional duty, the physician can make no disclosure. This is true, whether the knowledge is communicated by the words of the patient, or is gained by observation, or is the result of a professional examination. The law forbids the physician from disclosing what he learns in the sick-room, no matter by what method he acquires his knowledge: Masonic Mut. Ben. Ass'n v. Beck, supra; Excelsior Mut. Aid Ass'n v. Riddle, 91 Ind. 84; Penn. Mut. Life Ins. Co. v. Wiler, 100 Id. 92; 50 Am. Rep. 769; Carthage T. P. Co. v. Andrews, 102 Ind. 138; 52 Am. Rep. 653; Williams v. Johnson, 112 Ind. 273; Rapalje's Law of Witnesses, sec. 272.

The rule we have stated is a general one, for the statute makes no exceptions. It is a rule that may be invoked by the represenatives of the deceased patient. It must therefore apply to this case, unless the court legislates, and by legislation creates an exception. That we cannot do. The case before us is within the rule, and must be decided as the rule requires.

The question came before the court in Renihan v. Dennin, 103 N. Y. 573, 57 Am. Rep. 770, as it comes before us, in an action to set aside a will, and it was held, all the judges concurring, that the testimony was incompetent.

The case of Coryell v. Stone, 62 Ind. 307, is not in point. There was no such question in that case as we have in this, for there was no attempt in that case to secure a disclosure of knowledge acquired by a physician in his professional capacity.

In Vanvalkenberg v. Vanvalkenberg, 90 Ind. 433, no question was made as to the competency of the witnesses, nor was any such question made in Dyer v. Dyer, 87 Id. 13, so that neither of these cases lends any support to the appellants' position.

The instructions, taken, as they must be, as an entirety, correctly stated the law to the jury.

Judgment affirmed.