suit on account of goods sold and delivered. The defendant H. W. Johnson did not answer. The defendants J. K. Durst and W. L. Durst interposed an answer, denying that they were partners of H. W. Johnson, and denying generally the allegations of the complaint. It was not questioned on the trial that judgment should go against H. W. Johnson. The contention by defendants Durst was that they were not liable as general partners with defendant Johnson. Plaintiff offered in evidence a contract purporting to be a contract of limited partnership between defendant Johnson, as general partner, and defendants J. K. Durst and W. L. Durst, as special partners; then offered evidence of the admission of defendant Johnson that the account sued on was correct with promises to pay, and of a partial payment on said account out of the proceeds of the sale of the stock of the firm of H. W. Johnson, defendant. The liability of the defendants J. K. Durst and W. L. Durst depends upon the construction of the contract of partnership introduced in evidence, or rather whether said contract was made in compliance with the statute; and most of the exceptions hinge on this question. Our statute regulating limited partnerships (sections 1407-1434, Rev. St.), in section 1410 provides as follows: "The persons desirous of forming such partnership shall make and severally sign, in the presence of two subscribing witnesses, a certificate, which shall contain: First. The name or firm under which such partnership is to be conducted. Second. The general nature of the business intended to be transacted. Third. The names of the general and special partners interested therein, distinguishing which are general and which are special partners, and their respective places of residence. Fourth. The amount of capital which each special partner shall have contributed to the common stock. Fifth. The period at which the partnership is to commence, and the period at which it will terminate." Section 1413 provides: "At the time of the filing the original certificate, with the evidence of the execution thereof, as before directed, an affidavit of one or more of the general partners shall also be filed in the same office, stating that the sums specified in the certificate to have been contributed by each of the special partners to the common stock have been actually and in good faith paid in cash." Then section 1414 provides: "No such partnership shall be deemed to have been formed until a certificate shall have been made, proved, filed, and recorded, nor until an affidavit shall have been filed, as above directed; and if any false statement be made in such certificate or affidavit, all the persons interested in such partnership shall be liable for all the engagements thereof, as general partners." In 13 Am. & Eng. Enc. Law, p. 809, It is stated: "These requirements, being conditions precedent to the formation of such partnership are mandatory, and if they are

not strictly, or at least accurately and substantially, complied with, the special partners are not entitled to immunity from the debts of the firm, but will be liable as general partners." This statement is supported by the authorities cited. See, also, Jenning's Appeal (Pa. Sup.) 2 Lawy. Rep. Ann. 43, note (s. c. 16 Atl. 19); Refining Co. v. Wyman, 3 Lawy. Rep. Ann. 503, note (s. c. 38 Fed. 574); Bank v. Colgate (N. Y. App.) 8 Lawy. Rep. Ann. 712, note (s. c. 24 N. E. 799). The circuit court ruled in favor of plaintiff's contention that the contract of limited partnership in this case did not comply with the statute, because both in the certificate and in the affidavit it did not appear what sum each special partner had contributed and paid into the common stock. It appears in the certificate "that the said J. K. Durst and W. L. Durst have contributed the sum of one thousand ($1,000.00) dollars as capital to the common stock," and in the affidavit is this statement: "That the sum specified in the said certificate to have been contributed by the special partners to the common stock has been actually and in good faith paid in cash." We do not think it either a strict or a substantially accurate compliance with the statute merely to state what all the special partners in the aggregate contribute. The statute, for reasons of its own, insists that the amount each special partner contributes shall be specified. As the limitation of the liability of a special partner, under the limited partnership statute, must depend upon compliance with the statute, it follows, if the statute be not complied with, that the special partner becomes liable as a general partner. It follows that there was no error in refusing the motion for a nonsuit, for there was evidence tending to establish the liability of the defendants as general partners by proof of the contract of limited partnership and its noncompliance with the statute, followed by evidence of the admission of H. W. Johnson, the general partner, as to the correctness of the account sued on.

But, independent of this, in section 1431, Rev. St., it is provided that "any creditor of a limited partnership may, at his option, include in his suit against the same the special partner or partners who may become liable as general partners by failing to comply with the provisions of this chapter; and all the facts necessary to affirm or negative the liability of such special partner or partners may be given in evidence under the general issue; and the failure of the plaintiff to establish such liability shall not be cause of nonsuit." As the construction of a written contract is exclusively within the province of the court, and as the question whether the contract in question complied with the statute is purely a question of law, it was, of course, not a charge in respect to facts for the judge to state to the jury his construction of the contract, and his views whether the same complied with the statute. This is all

that he said in reference to the fourth, fifth, sixth, seventh, and eighth exceptions, imputing error in the charge in respect to matters of fact. It follows also that the ninth, tenth, eleventh, and twelfth exceptions must be overruled, because the charge of the judge to the jury on the question whether the certificate and affidavit complied with the statute was in accord with the views of the court. Under the twelfth exception it is argued that, unless there was some false statement made in the certificate or affidavit under the limited partnership act, the special partner would not be liable as a general partner. But, as has been shown, the test is not whether any statement is false or not, but whether the statements made comply with the requirements of the statute. If the statements made are upon their face in comformity with the statute, under the last clause of section 1414 above quoted, it may be shown that the certificate or affidavit is false in some required statement, in which case the special partner is liable as a general partner, notwithstanding, on their face, the certificate and affidavit comply strictly with the statute. The falsity of some requisite. statement is an additional, not the sole, ground upon which the liability of the special partner becomes general.

The exceptions relating to the admission of certain testimony and the refusal to admit other testimony will be briefly noticed. The first exception alleges error in permitting the following questions and answers: "Q. You say you paid Mr. Giles out of this a certain amount of money? A. Yes, sir; I have your receipt for it. Q. And myself a certain amount? A. Yes, sir." Waiving the objection that the question is too general, we may say the testimony was relevant as tending to show a partial payment of the account sued from the proceeds of the assets of the firm of H. W. Johnson. In so far as the questions are said to be leading, we may say that leading questions are largely within the discretion of the trial court, and will not constitute reversible error, unless there was abuse of discretion to the harm of the appellant. In this case the questions were mere repetitions of what the witness had already testified to in a more specific manner. The second exception imputes error in allowing W. K. Blake to testify to the effect that defendant Johnson told him that no more than $1,000 had been paid in on the contract of partnership. We fail to see what possible harm such testimony could do the appellants. The alleged statement by Johnson did not differ from his affidavit attached to the certificate, which was introduced in evidence. The thirteenth exception assigns error in refusing to allow J. K. Durst, one of the defendants, to testify how the $1,000 paid into the limited partnership business by J. K. Durst and W. L. Durst was contributed,— whether individually or as a partnership firm under the name of J. K. Durst and W.

L. Durst. The ruling was correct. The certificate, under the act, must speak for itself. Besides, the act, as shown, does not permit any joint contributions by special partners. The contributions by special partners are several, and the amount contributed by each one must be specified. The judgment of the circuit court is affirmed.

(45 W. Va. 179)

HARMISON v. BALLOT COM'RS. (Supreme Court of Appeals of West Virginia. Sept. 26, 1898.)

COURTS

- REVIEW

CONSTITUTIONAL LAW AP PORTIONMENT OF DELEGATES.

1. An unconstitutional act forming a delegate district or apportioning delegates for the house of delegates may be declared void by the courts, although the act is the exercise of political power, since in such case the question is judicial.

2. When, after a census, the legislature bas, by law, created delegate districts, and appor tioned delegates for the house of delegates among the counties and districts, section 10 of article 6, of the constitution forbids any change until after the next census. An act making earlier change is void.

(Syllabus by the Court.)

Error to circuit court, Jefferson county; E Boyd Faulkner, Judge.

Application by Frank H. Harmison for a writ of mandamus directed to the ballot commissioners of Jefferson. Judgment for petitioner, and the commissioners ask for a writ of error. Denied.

Jacob Engle, for petitioners. Forrest W. Brown, for respondent.

BRANNON, P. In 1891, the legislature made an apportionment of delegates among the various counties and districts to constitute the house of delegates, giving Berkely and Jefferson counties each one delegate, and erecting a delegate district, called the "Seventh delegate district," out of Berkely, Jefferson, and Morgan counties, with two delegates. In 1897 the legislature passed an act (chapter 78) taking Morgan county out of said district, and giving it one delegate, and giving Berkely and Jefferson each one delegate, and making them the Seventh delegate district, with one delegate. It reapportioned and redistricted the state as to delegates. A convention called by the Democratic party, claiming that the act of 1897 was unconstitutional, and that the Seventh district stood as it was under the act of 1891, composed of Berkely, Jefferson, and Morgan counties, nominated R. W. Morrow, a resident of Jefferson county, and Frank Harmison, a resident of Morgan county, as candidates for the house of delegates, to represent said district; but the ballot commissioners of Jefferson county, acting under said act of 1897, refused to put said Harmison's name on the ballots to be used in the election to be held in November, 1898, and then Harmison asked and obtained, by the judgment of the circuit court of Jef

ferson county, a peremptory writ of mandamus, commanding said commissioners to put his name on such ballots; and said commissioners now ask this court for a writ of error from said judgment.

A question occurred to my mind whether this court could consider the case,-whether this matter was in its nature a judicial matter cognizable by the courts, or a matter of purely a political, legislative, or governmental nature, to be left absolutely to the legislature, since the power to erect districts and apportion delegates was vested in it by the constitution; but I find that the subject has been discussed in various cases, and it has been held that the constitutionality of apportionment acts is a subject of Judicial inquiry, not merely political. This is based on the consideration that the judiciary must hold an act contrary to the constitution as no law for any purpose. Denny v. State (Ind. Sup.) 42 N. E. 929, and cases there cited. See, also, State v. Wrightson (N. J. Sup.) 28 Atl. 56. I find it so held in the six states of Indiana, Wisconsin, Michigan, New York, Illinois, and New Jersey. Further search shows that Massachusetts, Ohio, North Carolina, Nebraska, and Kansas supreme courts hold the same doctrine, as will be seen in the opinions in State v. Cunningham (Wis.) 51 N. W. 724 (full discussion). Chapter 25, Acts 1893, gives the writ of mandamus to control ballot commissioners, as held in Marcum v. Commissioners, 42 W. Va. 263, 26 S. E. 281. Of course, this would not give jurisdiction if the matter were not of judicial character; but, being of such character, that act applies mandamus. Wherever the question of constitutionality arises in the administration of rights, the courts have power to pass on it. The case, then, turns upon the question of the constitutionality of the act of 1897. If that act is constitutional, Harmison is ineligible to represent the district, and has no right to go upon the ballots, because a resident of Morgan county, which, under that act, is no part of the district; whereas, if that act is unconstitutional, the district stands as under the act of 1891,-Morgan a part of it. Section 7 of article 6 provides that "after every census the delegates shall be apportioned as follows," giving a mode of apportionment. Then section 10 says: "The arrangement of the senatorial and delegate districts, and the apportionment of delegates, shall hereafter be declared by law as soon as possible after each succeeding census taken by authority of the United States. When so declared, they shall apply to the first general election for members of the legislature to be thereafter held, and shall continue in force unchanged until such districts shall be altered and delegates apportioned under the succeeding census." We plainly see that both sections contemplate one apportionment and arrangement of districts after each census, not a changing one every session of the legislature. This provision, fixing one appor

tionment after a certain event,-the taking of a census,-plainly contemplates that there shall be but one after each census. This provision is mandatory, not simply directory, for the reason that it manifestly designed to have a fixed apportionment, lasting from census to census, not varying and unstable. The nature of the subject tells us that this must be so, as it ought to be so. Another reason is that constitutional provisions are mandatory, not merely directory. Cooley, Const. Lim. 93. A case strongly supporting this position is the Indiana case of Denny v. State, 42 N. E. 929. The constitution of Indiana provided that an enumeration of voters should be taken every six years, and that an apportionment of representatives should "be made at the session next following each period of making such enumeration"; and that case held that the mere fact that the constitution provided for an apportionment after each enumeration Implied that, when such apportionment was once made, it forbade another until another enumeration, although there was no prohibition in the constitution against a change of apportionment, and that but one apportionment could be made in the six years. So, it was held in Slauson v. City of Racine, 13 Wis. 398, and Opinion of Justices, 6 Cush. 575, and State v. Cunningham, supra. But when we see that our constitution expressly says that an apportionment, when once made, "shall continue in force unchanged until such districts shall be altered and delegates apportioned under the succeeding census," the case is made conclusive against any earlier change of district. The provision for one apportionment and districting after each census is mandatory, not by mere construction, but because there is a prohibition against any change until the next census. There is no room here to construe and doubt. We must simply obey the constitution. If there were any escape, I would not declare the act void; but there is no other alternative. We therefore refuse a writ of error, as we regard the decision of the circuit court plainly right.

Note by BRANNON, P.: I call attention to the case of People v. Hutchinson, 172 Ill. 486, 50 N. E. 599, published since I delivered the above opinion. The constitution of Illinois provides that "the general assembly shall apportion the state every ten years" for senators, and so forth, and that case held said provision mandatory, and as prohibiting any second apportionment within the 10 years after the legislature had once made an apportionment after a census. The case strongly supports the above opinion.

(105 Ga. 555)

EQUITABLE MORTG. CO. v. BUTLER. (Supreme Court of Georgia. Oct. 17, 1898.) DEED-DELIVERY-ESTOPPEL-NEW TRIAL.

1. The presumption of the delivery of a deed which arises from the fact that it has been recorded is not conclusive, and, between the parties to the instrument, may be rebutted; yet when it appears that such deed was duly recorded at the instance of the grantor, and

as he, and not the movant, should suffer. (2) In admitting in evidence, over objection of movant, the following testimony of Butler: "The deed was never delivered to Henry W. Miller." It is alleged that this was error, because: (a) The question of nondelivery of the deed could be raised only by the grantor, Willis Miller. (b) The evidence was inadmissible unless it was shown that the movant had notice of the nondelivery of the deed. (3) In allowing Butler to testify, over the objection of movant, "The deed has been in my possession ever since it was recorded." It is alleged that this was irrelevant, and did not illustrate any issue before the court for determination. (4) In allowing Butler to testify, over objection of movant, that Willis Miller owed him (witness) money at the time the deed was made, and they were to have a settlement, and that the settlement was never made. It is alleged that this was error, because it was not shown that the movant had notice of any private transaction between these parties, and should not be bound by alleged equities existing between Willis Miller and the plaintiff. (5) In permitting Butler, over objection of movant, to testify in regard to the nondelivery of the deed from Willis Miller to Henry W. and Mary J. Miller, and in regard to the debts due by Miller to Butler, because it was not attempted to be shown that movant had notice of the nondelivery of the deed.

As will be seen, the rights of the respective parties in the trial below were made to turn exclusively on the question as to whether there had, in fact and in law, been a deliv- | ery of the deed from Willis Miller to Henry W. Miller and Mary J. Miller. The trial judge instructed the jury that, if such deed had not been delivered, then the title did not pass out of Willis Miller, and they should accordingly find the land subject to the execution. We agree with the contention of counsel for claimant that the issues raised in the case involve the application of another principle of law, not included in the question of the actual delivery of the deed. It cannot be questioned, in the light of the evidence, that the deed from Willis Miller to Henry W. and Mary J. Miller was an escrow, and that, treating the deed as a muniment of title, the grantees could take nothing by the deed. Civ. Code, § 3603. It is freely conceded, too, that as between those parties the registry of the deed was only presumptive evidence of its delivery, and such presumption might be rebutted, and the grantor allowed to show by competent evidence that notwithstanding such registry the deed was never in fact delivered, and consequently passed no title. Wellborn v. Weaver, 17 Ga. 275; Harvill v. Lowe, 47 Ga. 214; Ross v. Campbell, 73 Ga. 309; Gordon v. Trimmier, 91 Ga. 472, 18 S. E. 404. It is equally true, however, that where a grantor executes a deed in escrow, but at the same time, for any reason, directs that it be spread upon the records, and it is

duly recorded, and is absolute and unconditional on its face, and nothing appears on the record to indicate that the grantee holds other than an unconditional, fee-simple title, and no facts appear sufficient to put a prudent person upon inquiry as to the real truth of the transaction as between the grantor and the grantee, such grantor will ordinarily, as against an innocent purchaser, who, upon the faith of such record, and for value, takes a subsequent conveyance from the person named in the deed as grantee, be estopped to set up the nondelivery of the deed to his grantee, and thus defeat the conveyance taken by such innocent purchaser from such grantee. As is said in Wade, Notice, § 96, the registry acts are intended to furnish the best and most easily accessible evidence of the titles to real estate, to the end that those desiring to purchase may be fully informed of instruments of prior date affecting the subject of their contemplated purchases, and also that, having availed themselves of this means of knowledge, they may rest there and purchase in absolute security, provided they do so without knowledge, information, or such suggestions from other facts as it would be gross negligence to ignore, of some antecedent conveyance or equitable claim. If the owner or a person having an interest in property represents another as the owner, or permits him to appear as such, or as having complete authority over it, he will be estopped to deny such ownership or authority, against persons who, relying on his representations or silence, have purchased or acquired an interest in the property; and generally where a person, by word or conduct, voluntarily induces another to act on a belief in the existence of a certain state of facts, he will be estopped, as against him, to allege a different state of facts. 7 Am. & Eng. Enc. Law, p. 18 et seq. In the case of Greer v. Mitchell (W. Va.) 26 S. E. 302, it is said: "A party who by his acts, declarations, or admissions, or by failure to act or speak under circumstances where he should do so, either designedly or with willful disregard of the interests of others, induces or misleads another to conduct or dealings which he would not have entered upon but for this misleading influence, will not be allowed afterwards to come in and assert his right, to the detriment of the person so misled. That would be a fraud." And, applying this principle, it was held in that case that where the owner of a tract of land conveys the same to his brother by a deed absolute on its face, and allows the said deed to remain for years on the record of the county in which the land lies, thus giving notice to the world of the title thereto in said brother, and third parties extend credit to that brother, and allow him to become indebted to them, and obtain judgments against the brother for the debts thus created, and docket the same in the county where the land is situated, such creditors