tion of the joint debt, and thereby an obligation as to such part arose as between the parties, this would not render the notes evidences of partnership indebtedness to the payee thereof, in case it could be held that there was a partnership; this money in such case constituting capital paid in by the appellant. Considering the matter with reference to the actual relation of the parties, the appellee might be answerable to the appellant for some part of the money obtained and used for the benefit of the appellee to the extent that the appellant was not reimbursed therefor by and through the surplus of the net income retained by him. He would have to account for and pay to the appellant so much less of the surplus of the net income. The court could properly regard the unpaid notes as having been given for money borrowed by the appellant alone for his own use, and therefore might properly hold, as it in effect did hold, that the outstanding notes ought not to be considered as entering into the account between the parties adjusted in this suit. The parties were not partners inter se, and they did not hold themselves out as such to the payee of the notes, which were not given or received as the notes of a partnership. See Hubbell v. Woolf, 15 Ind. 204; Ditts v. Lonsdale, 49 Ind. 521. To be a partner, one must have an interest with another in the profits of a business, as profits. There must be a voluntary contract to carry on a business with intention of the parties to share the profits as common owners thereof. A person who receives a share of the net profits of a business as compensation for services or in lieu of rent for the use of property, real or personal, is not thereby made a partner. See 22 Am. & Eng. Ency. of L. (2d Ed.) 36; Macy v. Combs, 15 Ind. 469, 77 Am. Dec. 103; Emmons v. Newman, 38 Ind. 372; Keiser v. State, 58 Ind. 379; Bradley v. Ely, 24 Ind. App. 2, 56 N. E. 44, 79 Am. St. Rep. 251. There was no special finding, properly so called, and the finding in which the remark above quoted occurs is to be considered as a general finding. Whether or not the remark of the court may properly be regarded as in itself presenting any question for decision, we have not been disposed to avoid the question discussed by counsel; and we conclude that the disposition of the cause as indicated by the remark so inserted in the finding was not materially erroneous, though the court below incorrectly adopted the term "partnership" loosely used in the course of the proceedings. Judgment affirmed.

(38 Ind. A. 403)

RUDISELL v. JENNINGS. (No. 5,739.) (Appellate Court of Indiana, Division No. 2. June 22, 1906.)

1. CHATTEL MORTGAGES-IMPERFECT DESCRIP

TION-FORECLOSURE.

Where the specific personal property intended to be mortgaged is described in the complaint and finding, and there is no doubt but

what the decree of foreclosure covers the property and no rights of third parties have intervened, the mortgagor is not harmed by an imperfect description of the property in the mortgage, where the very property he pledged to secure his debt was made subject to sale by the decree.

2. SAME.

As between the parties to a chattel mortgage any description of the property is sufficient, if the parties at the time knew and understood what the mortgage covered.

[Ed. Note. For cases in point, see vol. 9, Cent. Dig. Chattel Mortgages, § 87.]

On rehearing. Petition for rehearing overruled.

For former opinion, see 77 N. E. 959.

WILEY, J. Appellant has petitioned for a rehearing and has assigned four reasons therefor; but they may all be grouped and considered under the single proposition which is urged by appellant, that the description of the property in the mortgage is too indefinite and uncertain, even as between the parties, to constitute a valid contract. The original opinion contains the following sentence: "The complaint specifically describes the property, and avers that it was the only property of its character owned by the mortgagors." This expression is not wholly correct, and it is due to appellant that the facts as pleaded should be correctly stated. It is averred that "the said cows and said wagon being the only cows and only new wagon owned by and in possession of said defendants on the day of the execution of said mortgage." The complaint further avers: "That the property described herein is identical with and the same property as described in said mortgage." Omitting the description of the cows, the balance of the mortgaged property is described in the complaint as follows: "Three work horses, one of which is gray in color, eight years old and named Joe; one of which is black in color, nine years old, and named Daisy; one of which is black in color, nine years old, and named Dolly. Also one heavy broad-tread farm wagon." In the brief in support of the petition for a rehearing counsel for appellant admits that "the questions decided in the opinion are correctly decided, except the one proposition: Was the complaint sufficient to warrant a decree of foreclosure of the three work horses set out in the mortgage, and attempted to be described in the complaint?"

As between appellee and an innocent third party it may be conceded that the description of the horses, as stated in the mortgage, unaided, is too indefinite and uncertain, and would render the mortgage invalid. But no question of an innocent third party is presented by this appeal. The rights of the parties are to be determined upon the proposition that they are the original contracting parties. If they knew and understood what specific property was intended to be mortgaged, and a part of such property was not properly described, under proper averments of the com

description it was competent to prove that the horses taken by the mortgagees were those actually mortgaged. Eddy, etc., Co. v. Caldwell, 7 Minn. 225 (Gil. 166). As against a subsequent purchaser, property described as "one dark wood chamber suit (three pieces), one center table," etc., now in their (mortgagor's) possession in the city of Minneapolis, etc., was held sufficient. Adamson v. Horton, 42 Minn. 161, 43 N. W. 849. See, also, Tolbert v. Horton et al., 33 Minn. 104, 22 N. W. 126.

The cases relied upon by appellant are principally those where the rights of innocent third persons have intervened, and hence are not of controlling influence here. It seems to be the rule well fortified by the authorities, that parol evidence is admissible to identify property conveyed in a chattel mortgage and to separate it from other property of a similar kind. Am. Dig. (Century Ed.) vol. 9, p. 2373 and authorities cited. Under the complaint and findings in this case, it clearly appears that the horses against which the decree is to operate, are the identical ones that were intended by both of the parties to be included in the mortgage, and it matters not whether appellant had other horses of like or different kind, at the time. From the whole record we are led to the conclusion that the respective rights of the parties have been rightly adjudicated, and no error is presented prejudicial to appellant.

Petition for a rehearing overruled.

(74 Oh. St. 198)

LAMBRIGHT v. LAMBRIGHT et al. (Supreme Court of Ohio. May 1, 1906.) 1. EXECUTORS AND ADMINISTRATORS-ASSETSDEBTS DUE BY HEIRS-DISTRIBUTION.

The administrator or executor of a decedent's estate has the right and it is his duty to retain out of the distributive share of an heir or legatee, or out of the sum due a creditor, an amount equal to the debt owing by such heir, legatee, or creditor to the estate; and this right and duty exists whether the heir, legatee, or creditor was indebted to the deceased before his death or contracted a liability to the estate thereafter.

[Ed. Note.-For cases in point, see vol. 22, Cent. Dig. Executors and Administrators, § 1170.]

2. SAME.

A debt due from an heir, legatee, or creditor to an estate is an asset of such estate, and where the distributive portion of such heir or legatee or the claim of such creditor is equal to or greater than his debt to the estate, the administrator or executor should charge himself with, and account for, the full amount of the

same.

(Syllabus by the Court.)

Error to Circuit Court, Wyandot County. Frank Lambright was appointed executor of Michael Lambright, deceased. On his final accounting, William Lambright and others filed exceptions. From an order sustaining the exceptions, the administrator brings error. Affirmed.

Carter & Goodrich and D. D. Clayton, for plaintiff in error. L. B. Reed and Carey & Parker, for defendants in error.

CREW, J. On the 7th day of September, 1898, letters of administration on the estate of Michael Lambright, deceased, were by the probate court of Wyandot county, Ohio, duly issued to the plaintiff in error, Frank Lambright, a son of decedent, who thereupon accepted said trust and duly qualified as administrator of said estate. At the time of his appointment and qualification as such administrator, Frank Lambright was insolvent. It is admitted on the record, that Michael Lambright at the time of his death was liable as surety for his son, Frank Lambright, on certain obligations then outstanding and unpaid, in the sum of $137.18 and that these several obligations, on which Michael Lambright was surety, were afterwards paid off and satisfied by Frank Lambright, as administrator, out of the funds of the estate of said Michael Lambright. On January 30, 1899, Frank Lambright as administrator filed in the probate court of Wyandot county his first partial account. In this account he charged himself with cash received to the amount of $7,919.37, and claimed credit for sundry disbursements made by him amounting to $6,588.82, leaving in his hands for distribution, as shown by this account, $1,330.55. He did not, in this account, charge himself with, or account for the $1,137.18, his debt to the estate, which had been paid by him out of the funds of the estate, although he claimed and was allowed by the probate court a credit for the amount so paid. In addition to this credit of $1,137.18, said administrator claimed and was allowed, in said account, further credits as follows: "To amount paid Frank Lambright on his claim as per order of probate court, $654.17." "To amount paid Frank Lambright, administrator's commission, $273.40." "To amount paid Frank Lambright for expenses $25," and to amount paid Frank Lambright on his distributive share $178. Thus it will be seen that out of the above sum of $7,919.37 cash actually received by him, and with which he charges himself in said account, Frank Lambright retained or paid to himself out of the moneys of the estate, the sum of $1,130.57. No exceptions having been filed thereto this account was approved and settled by the probate court March 6, 1899. January 14, 1901, said administrator filed a second account which was approved and confirmed February 4, 1901, no exceptions at that time having been filed thereto. Thereafter, and within eight months, to wit, on March 7, 1901, the defendants in error, as heirs at law of Michael Lambright, deceased, filed in the probate court of Wyandot county their exceptions to said account, alleging therein among other grounds of exception the following: "There is manifest error in said account. Said administrator has not embraced in his inventory or returned

as assets the sum of $1,137.18 due from him to the estate." Upon the hearing, this exception was sustained by the probate court, and thereupon, at his request, leave was given the administrator Frank Lambright, to file a supplemental account. Thereafter, on March 19, 1901, he filed what he denominated a "supplemental and final" account, charging himself therein with said sum of $1,137.18, omitted from his former account. This supplemental account was, without exception or objection from the administrator, approved, confirmed, and settled by the probate court on May 13, 1901, and said administrator was ordered to distribute according to law, the balance in his hands belonging to said estate, amounting to $1,283.26. On February 25, 1902, said administrator filed another account which he entitled "final account," in which he charged himself as follows: "To amount received from William Lambright on account due said estate since last account herein was filed $10.00." And then, for the purpose of procuring the correction of an alleged mistake in his supplemental account filed March 19, 1901, he appended the following statement: "Said administrator in justice to his sureties on his bond here makes an explanation and correction in the item of $1,137.18 charged to him in his supplemental account herein filed on the 19th day of March, 1901, the explanation of which was given in his first account filed herein, but omitted by mistake and inadvertence in said supplemental account. Said explanation more fully stated is as follows: Said decedent, Michael Lambright, at the time of his death, was jointly and severally liable with the said Frank Lambright in the sum of $1,137.18, which sum this administrator did not owe the estate at the time of the decedent's death nor at the time he qualified by giving bond as such administrator; and which sum for that reason did not become assets of said estate for which his said sureties were or are liable. Said Frank Lambright, as such administrator, should have charged himself in said supplemental account with the balance as shown by said supplemental account, to wit: $1,283.26, less the said sum of $1,137.18, which difference is here charged, to wit: $146.08. Total amount for which said administrator and his bondsmen as such are liable less the credits hereinafter claimed, $156.08. Said Frank Lambright was at the time of the death of said decedent and has ever since that time remained, and now is, insolvent, and is unable to pay the said joint indebtedness of said decedent and himself. *** Frank Lambright owes said estate the sum of $1,137.18 which sum was paid by the administrator on claims upon which the said Michael Lambright was surety for him. The said Frank Lambright is wholly insolvent. This item is the item charged to said administrator in his supplemental account filed March 19, 1901."

To this account exceptions were filed by

the defendants in error which were sustained by the probate court, and said administrator was held to be properly charged in his supplemental account with said item of $1,137.18, An appeal was taken by the administrator to the court of common pleas, where, on the hearing of said exceptions it was found and adjudged by that court, "that said account is in all respects correct and according to law; that as stated therein, a mistake or error was made in said executor's account immediately preceding this account, designated as a "supplemental account," in the sum of $1,137.18; that said sum. represents a debt owing by said executor to said estate, but that said debt from him to such estate did not exist at the time he qualified by giving bond as such executor; that such debt accrued by reason of his having: paid debts out of the funds of the estate for which the estate was liable as surety for him; that at the time of making such payments, he was and ever since has been insolvent, and wholly unable to pay such debts, that said sum of $1,137.18, should not $1,137.18, should not have been charged against said executor as money in his hands in said supplemental account, and that the exceptions to this account should be overruled, to which the exceptors then and there excepted." Error was prosecuted to the circuit court where the finding and judgment of the court of common pleas was reversed. And the circuit court proceeding to render such judgment as the court of common pleas should have rendered, found from the undisputed facts that said Frank Lambright as administrator, should be charged with said sum of $1,137.18, and rendered judgment accordingly. To obtain a reversal of this judgment of the circuit court the administrator brings the present proceeding in error. The record in this case, upon the facts stated, presents for our consideration the question, whether or not Frank Lambright as administrator was properly charged by the circuit court with the item of $1,137.18 as assets in his hands to be accounted for and distributed by him according to law.

It is conceded to be tne general rule that the indebtedness of a legatee or distributee constitutes assets of the estate which it is the duty of the executor or administrator to collect, whether such legatee or distributee was indebted to decedent before his death, or became indebted to the estate thereafter. It is, however, in the present case, contended by counsel for plaintiff in error, that inasmuch as Frank Lambright at the time of his appointment and qualification as administrator of his father's estate was not then actually indebted to said estate, but only became debtor thereto, in the manner above stated, after his appointment as administrator, that, therefore, he being then insolvent, such indebtedness did not become an asset of the estate in his hands to be accounted for by him as so much cash received, and may not properly be so charged against him, and

that to so charge him would work injustice and operate as a fraud on the sureties upon his administration bond. How much of force and reason there might be in this claim, if the administrator were not himself a beneficiary and distributee of Michael Lambright's estate to an amount equal to or exceeding the amount owing by him to said estate, we need not determine. It is undeniably the law of Ohio that an administrator or executor has the right and it is his duty, in the due administration of his trust, to retain out of the distributive share of an heir or legatee, and to hold, and set off against the claim of a creditor indebted to the estate, an amount, if so much there be, as shall equal the indebtedness of such heir, legatee or creditor to the estate; and this right and duty exists whether the heir, legatee or creditor was indebted to decedent at the time of his death or contracted a liability to the estate thereafter. In either event the right of the heir or legatee to participate in the distribution of the estate, or of the creditor to be paid his claim, is subject and subordinate to the debt of such distributee or creditor to the estate, and the latter, in so far as there are assets in the hands of the administrator applicable thereto, must first be paid and satisfied. And the duty and obligation resting upon the administrator or executor under such circumstances to withhold and apply, to the extent of the debt, the amount that would otherwise have been payable to the heir, legatee or creditor, is in no manner controlled or affected by the solvency or insolvency of such heir, legatee, or creditor. In the present case, as we have seen, Frank Lambright was both an heir of, and debtor to, the estate he was administering. He used of the assets of said estate in payment of an obligation or debt of his own, on which his father was surety, the sum of $1,137.18. With this amount, so used and applied by him, he did not charge himself in his account, until compelled thereto by the judgment of the probate court. His accounts show that during his administration of the trust estate he retained and paid to himself, as distributee and otherwise, out of the assets in his hands as administrator, sums aggregating in amount more than $1,150, and took credit in his accounts, as, against the estate, for the amount so retained or paid to himself. Thus it will be seen that said Frank Lambright had in his hands, as due him from the estate, an amount in excess of that necessary to pay off and cancel his debt of $1,137.18 due the estate. This being true, it was his duty as administrator to so apply and use it and to account for and charge himself with said sum of $1,137.18 as assets of the estate in his hands to be distributed according to law. This conclusion is clearly supported by the following authorities: McGaughey, Adm'r, v. Jacoby, 54 Ohio St. 487, 44 N. E. 231; James v. West, Adm'r, 67 Ohio St. 28, 65 N. E. 156; Woerner's American

Law of Administration, § 564; Henry v. Fiske, 11 R. I. 318; Gosnell, Trustee, v. Flack and Hoffman, Adm'rs, 76 Md. 423, 25 Atl. 411, 18 L. R. A. 158; New v. New, 127 Ind. 576, 27 N. E. 154; Baily's Estate, Jackson's Appeal, 156 Pa. 634, 27 Atl. 560, 29 L. R. A. 444; Sanchez v. Forster, 133 Cal. 614, 65 Pac. 1077; Ramsour, Ex'x, v. Thompson and Ramsour, Ex'rs, 65 N. C. 628; Tinkham v. Smith, Adm'r, 56 Vt. 187; Taylor v. Jones, 97 Ky. 201, 30 S. W. 595. It is suggested in argument, in the brief of counsel for plaintiff in error, that the adjudication and settlement by the probate court, of the first account filed by Frank Lambright as administrator, no exception having been filed thereto, was and is, as between the parties to the present controversy, final and conclusive. This claim we think is sufficiently answered by the provision of section 6187, Rev. St. 1906, the language of which is as follows: "and upon every settlement of an account by an executor or administrator all his former accounts may be so far opened as to correct any mistake or error therein; excepting that any matter of dispute between two parties which had been previously heard and determined by the court shall not be again brought into question by either of the same parties without leave of the court."

We are unanimously of the opinion that the judgment of the circuit court in this case charging Frank Lambright as administrator with said sum of $1,137.18 as assets in his hands was right, and the judgment is accordingly.

Affirmed.

SHAUCK, C. J., and PRICE, SUMMERS, SPEAR, and DAVIS, JJ., concur.

(74 Oh. St. 168) BIGALOW FRUIT CO. v. ARMOUR CAR LINES.

(Supreme Court of Ohio. May 1, 1906.) 1. CORPORATIONS - FOREIGN CORPORATIONS INTERSTATE COMMMERCE-ATTACHMENT.

A foreign corporation, whose business is furnishing refrigerator cars and ice therefor for transportation purposes partly within this state and partly without and across this state, is a "transportation or other corporation engaged in Ohio in interstate commerce business," within the meaning of section 148c, Rev. St. 1906. 2. SAME.

Such corporation is not subject to the provisions of section 148c, Rev. St. 1906, nor entitled to comply with its requirements; and a voluntary compliance with that section by such corporation will not bring the corporation within the proviso of section 148d, Rev. St. 1906, so as to exempt it from process of attachment upon the ground that it is a foreign corporation or nonresident of this state.

(Syllabus by the Court.)

Error to Circuit Court, Cuyahoga County. Action by the Bigalow Fruit Company against the Armour Car Lines. Judgment for plaintiff in the court of common pleas was reversed by the circuit court, and it