Opinion of the Court-Leonard, C. J.

when section 151 was so amended (C. L. 1779) as to permit, under the circumstances therein stated, the admission of depositions at the trial. So it is evident that the legislature of 1861 did not intend what is now claimed by counsel for appellant, because by section 167 recognizances of the people's witnesses were required, while the use of their depositions at the trial was not permitted by statute. The intention at that time seems to have been, mainly at least, to insure the presence at the trial of the material witnesses for the prosecution. At the session of 1867 section 167 was amended so as to require the magistrate to take from each material witness examined before him a written recognizance to appear and testify at the trial, or that he would forfeit the sum which might be ordered by the court. The three sections which follow have never been amended, and with those preceding, they show to our minds that the legislative intent has always been the same-that is, to secure the attendance of witnesses required to give recognizances, as well after 1867, when depositions were admitted in certain cases, as before, when the statute did not provide for their admission in any event. We think the legislature of 1867 had but one object in amending section 167, which was to secure, or to aid in securing, the attendance of the defendant's witnesses as well as those for the state, and that it did not intend to make the taking of a recognizance a condition precedent to the admission of the deposition.

Section 151 (C. L. 1779) states the circumstances under which depositions may be used by either party at the trial, and we can not change them by adding conditions not stated, or subtracting those specified.

Should either party induce a witness not to appear at the trial, that fact proven would, probably, debar such party from the right to use the deposition, in case the witness is out of the state, or unable to attend, on account of the acts of that party; but we think of no other case where the deposition may not be used under the circumstances mentioned in section 151.

It is the duty of the magistrate to obey the statute in relation to the taking of recognizances of material witnesses,

Opinion of the Court-Leonard, C. J.

and it is the same in respect to other requirements touching preliminary examinations. A defendant can, however, always protect himself if he sees fit, by having the depositions of his witnesses taken conditionally, under section 171; and as to the witnesses for the state, he has a right to cross-examine them fully at the preliminary examination.

Finally, it is claimed by appellant's counsel that the court erred in admitting Mercer's deposition because there was no proof that he was "sick, out of the state, dead, or that his personal attendance could not be had in court." We think this objection is well taken. The statute provides that, depositions taken upon preliminary examinations, reduced to writing and authenticated by the magistrate as therein required, "may be used by either party on the trial of the cause, * * * when the witness is sick, out of the state, or when his personal attendance can not be had in court." (C. L. 1779.)

It admits of no discussion that it was incumbent upon the state to show, by some proof at least, the existence of one of the conditions stated in the statute; for it is only when the witness is sick, etc., that the right to use the deposition is given. It is not shown whether Mercer was a resident of the state or not. So far as we know, he may have resided in the town of Elko, where the case was tried.

The only evidence given as a foundation for the introduction of the deposition in question, is as follows: John M. Lane, constable, said: "Saw a man in Elko on the evening of the fifth day of November, 1880, who said his name was A. W. Mercer. He went by the name of A. W. Mercer here. I heard him testify before the committing magistrate on the hearing upon this case. He had a ticket for Chicago; said he was going to Kankakee, Illinois. I saw him get on the cars going east on the evening of the sixth of November, 1880; have not seen him since." There was then no proof that the witness was sick, or dead, and we think there was nothing to show that he was out of the state, or that his personal attendance could not have been had in court. The cause was tried November 26, and he left Elko on the cars on the sixth of the same month. He had time enough,

Argument for Appellant.

and more, to go to Illinois and return, between the two dates mentioned. Besides, he may not have gone beyond the first station east of Elko. He may not have intended, in fact, to leave the state. So far as we know, no effort was made to find him or produce him in court. No subpoena was issued for him. So we say again, there was absolutely no proof that he was out of the state, or that his personal attendance could not have been had in court. For the error in admitting the deposition without proof of some one of the conditions stated in section 151, the judgment must be reversed and the cause remanded for a new trial. It is so ordered.

[No. 1,032.]

A. H. MANNING, SURVIVING PARTNER OF THE LATE FIRM OF MANNING & DUCK, APPELLANT, v. M. J. SMITH, RESPONDENT.

ACTION BY SURVIVING PARTNER ON PROMISSORY NOTE EXECUTED IN FIRM NAME AFTER DEATH OF A PARTNER-SUFFICIENCY OF COMPLAINT.-The allegations of complaint stated in the opinion and held equivalent to a positive averment that the note was made and delivered to the plaintiff, as surviving partner, in the name of the firm, and to be sufficient to enable plaintiff to maintain the action.

APPEAL from the District Court of the Second Judicial District, Washoe County.

The facts appear in the opinion.

Webster & Rankin, for Appellant:

The demurrer to plaintiff's amended complaint was improperly sustained. On the death of one partner the surviving partner is entitled to all the choses in action and other evidences of debt belonging to the firm. They must be collected in his name. The right of action in relation to all partnership demands is transferred to the surviving partner. (Collyer on Part., sec. 666, note 5; Murray v. Mumford, 6 Cow. 441; Burney v. Smith, 4 Har. & J. (Md.) 485; Yale v. Eames, 1 Metc. 487.) The execution of the note sued on

Argument for Respondent.

after the death of Duck, in settlement of an account owing by Smith to the firm of M. & D., was not the making of a new contract, but simply the changing of the form of the indebtedness. (Collyer on Part., sec. 546, note; Darling v. March, 22 Me. 184; Rootes v. Wellford, 4 Munf. 215; Woodford v. Dorwin, 3 Vt. 522.) This does not prevent the surviving partner from suing upon it in his own name. Manning, as surviving partner, is the real party in interest. It is not necessary that the payee mentioned in the note is the real payee, if the court can ascertain who the real payee is. (1 Daniels on Neg. Inst., secs. 99, 100, and cases cited.)

W. M. Boardman, for Respondent:

I. The court did not err in sustaining defendant's demurrer to plaintiff's original complaint. It is not alleged in said complaint that any member of said firm is deceased. (1 Estee's Pl. 259; Collyer on Part., secs. 674, 675, 650, 651.) It is not shown that the plaintiff is the surviving partner, and as such, entitled to maintain this suit. (Hubbell v. Skiles, 16 Ind. 138; Ledden v. Colby, 14 N. H. 33.) The complaint discloses on its face that the note sued on was not made or delivered to the plaintiff as surviving partner. (Keith v. Pratt, 5 Ark. 661.)

II. The court did not err in sustaining defendant's demurrer to plaintiff's amended complaint. Upon the death of one of the members of said firm, September 19, 1878, the same was then dissolved. The firm of Manning & Duck being dissolved, then and thereafter ceased to be a person in law; new contracts or promissory notes could not be taken or made to such firm; the note sued on was not made or delivered to any person or payee in law, and is void. (Cornthwaite v. Bank of Rockville, 57 Ind. 268; Collyer on Part., secs. 540, 541; Story on Con., sec. 241; 1 Pars. on Con. 201; Wayman v. Torreyson, 4 Nev. 124.) The note was not the property of said firm, upon which any right of action exists in favor of plaintiff as surviving partner; but, if any right of action exists in favor of such plaintiff, it is upon the original demand of the firm. (Daby v. Ericsson, 45 N. Y. 786; Clark v. Howe, 23 Me. 560.) The right of the surviving

Opinion of the Court-Hawley, J.

partner was to continue in possession of the effects of the copartnership, and to settle its business, but his right and power do not extend further. No obligation to pay money can be made to the members of a firm when one of its members is dead, or to the firm, when the firm itself is dissolved. (Comp. L., p. 173, sec. 200; Coll. on Part., sec. 129, pp. 124, 125, and cases cited; Id., sec. 130, pp. 126, 127; Gleason v. White, 34 Cal. 258.)

By the Court, HAWLEY, J.:

This action was brought upon a promissory note executed by the defendant to "Manning & Duck," on the first day of January, 1879. The district court sustained a demurrer to the original and amended complaint, and (the plaintiff refusing to further amend) entered judgment in favor of defendant. The original complaint did not contain any averment as to who constituted the firm of Manning & Duck; nor did it allege that any member thereof was dead. It failed to show the essential facts necessary to authorize the plaintiff to maintain the action as "surviving partner of the late firm of Manning & Duck."

* *

The amended complaint alleges: "That prior to the nineteenth day of September, 1878, A. H. Manning and William Duck constituted a copartnership under the firm name and style of Manning & Duck; * that on the nineteenth day of September, 1878, said William Duck, one of the members of the said firm of Manning & Duck, died, leaving as sole surviving partner said A. H. Manning, in which capacity of surviving partner he brings this suit; that * * * on the first day of January, A. d. 1879, said M. J. Smith, defendant, in settlement of an account held by said firm against him, made, executed, and delivered, in the name of said defendant, his certain promissory note" (a copy of which is set out); "that the note is due and unpaid; that plaintiff, as surviving partner of the firm of Manning & Duck, is the holder of the note, it being the property of the late firm."

We are of opinion that these averments are sufficient to