Carr et al. v. State, ex rel. Attorney General. and made the following declaration of the conclusion then reached: "It is the true intent and meaning of this supplemental act, as we construe its provisions, that the attorney general of the State shall be and is thereby authorized to collect at once, with or without suit, all amounts paid to any public officer of the State, or any county officer, or other person, and not paid by such officer or person into the proper treasury, as required by law, for unclaimed witness fees, court docket fees, license, money unclaimed in estates or guardianships, fines or forfeitures, or moneys that escheat to the State for want of heirs, and all amounts due from any other source, where the same was, by any law, required to be paid to the State, or any officer in trust for the State; except as to fines, forfeitures, and property escheating or belonging to the State, which he may not collect, with or without suit, or sue for the recovery of, until after the expiration of one year from the time the cause of action has accrued therefor, and then only in the event that the proper prosecuting attorney has failed, neglected or refused, for and during the said year, to collect the same, or to institute proceedings for the recovery thereof." With this construction we are content to abide. It permits the attorney general, as from time to time he may ascertain that there is proper cause for it, to bring suits in behalf of the State, though he is not required to sue, except in cases where other officers whose duty it shall be to collect or sue shall fail or refuse to act for twelve months after the cause of action in favor of the State shall have accrued. We perceive no reason for saying that there is any inconsistency between this act, which confers upon the attorney general power to collect and to sue, and the previous acts referred to, which conferred similar powers on other officers. They may well stand all together, and whichever officer first institutes a suit will have the precedence. Repeals by implication are not favored, and we disapprove of the dictum-it is nothing more. than a dictum-in Moore v. The State, ex rel., supra, to the effect that the former acts are repealed by the latter. There is as Carr et al. v. State, ex rel. Attorney General. much reason for saying that the earlier acts were inconsistent with each other, as that they are in conflict with the act of 1873. Under the rule enunciated in The State v. Denny, supra, it is clear that the first paragraph of the complaint shows a cause of action as to some of the items sued for. The suit was commenced on the 30th of March, 1877, for moneys charged to have come into the hands of the principal defendant, for fines, docket fees, witness fees, etc., prior to the 4th day of November, 1876. In the second paragraph of answer, in which all the defendants joined, and to which a demurrer for want of facts was sustained, it was alleged "that the cause of action sued on, and each part thereof, accrued to the plaintiff more than three years before the bringing of this suit." The attorney general does not dispute the sufficiency of this plea, but claims that the error of sustaining the demurrer is cured by the ninth paragraph of answer, which is substantially the same in averment as the second. There is, however, this difference, which seems to be material, that Carr, the principal in the bond, does not join in the ninth paragraph. The language of the code on the subject is this: "All actions against a sheriff, or other public officer, or against such officer and his sureties on a public bond, growing out of a liability incurred by doing an act in an official capacity, or by the omission of an official duty," (must be brought) "within three years; but an action may be brought against the officer or his legal representatives, for money collected in an official capacity, and not paid over, at any time within six years." R. S. 1881, section 293. This action is upon the bond, and consequently all the parties were entitled to avail themselves of the three years limitation. It can not be treated as an action to recover money by him collected as against Carr, without reference to the bond, and as a suit upon the bond as to the other defendants. Carr et al. v. State, ex rel. Attorney General. There can properly be no such mixture of different kinds and causes of action against different parties in the same complaint. Neither can it be said that the error was harmless, because the damages assessed against Carr were not greater than the amount found against his co-defendants, who had the benefit of the plea. He had the right to rely upon his exception to the erroneous ruling, and to permit the trial between the other parties upon an issue in which he had been denied the right to join, to go as it might. There is some discussion in the briefs in reference to the right of the defendant Carr, after the suit had been commenced and before the service of the summons, to make payment to the county treasurer of any of the money sued for, and to direct the application of the payments so made. We perceive no reason why it was not lawful for him to pay to the county treasurer, pending the suit, any sums which he ought to have so paid without suit, and, having the right to pay, he clearly had the right to control the application of the payments. Under proper issues, the proof of such payments, made at any time before verdict, would seem to be admissible as affecting the amount of the recovery, but, of course, not affecting the right of the plaintiff to recover costs and penalties, which otherwise would be recoverable. Whether the attorney general would be entitled to claim fees for and out of the sums so paid, we do not consider. The other points made, both upon the errors and cross errors assigned, are not such as require present consideration. The judgment of the circuit court is reversed, with instructions to overrule the demurrer to the second paragraph of the answer. St. John et al. v. Hendrickson. No. 9207. ST. JOHN ET AL. v. HENDRICKSON. CONTRACT.-Statute of Frauds.-False Representations.—Partnership.—An oral W. H. Mathews and J. Q. Donnell, for appellants. S. B. Ewards, W. A. Moore and B. F. Bennett, for appellee. ELLIOTT, J.-By sifting the complaint of the appellee, and leaving out of consideration the mere matters of inducement and redundancy, we have the following material allegations: That the appellants were partners doing business under the style of "The Lone Tree Medicine Company;" that, to induce the appellee to invest in said partnership eight hundred dollars, they falsely represented to him that they each had invested therein the sum of eight hundred dollars, except St. John, whose skill in compounding the remedies which were manufactured and sold by the Medicine Company was estimated at that sum; that if the appellee would invest the sum named then the capital would be thirty-two hundred dollars; that the company was doing a large and profitable business; that the appellants conspired together for the purpose of defrauding him; that the representations were false, and were known to the appellants to be so; that the appellants had not invested the sum represented, but had invested and afterward withdrawn a sum not exceeding fifty dollars each; that appellee had no means of knowing whether the representations St. John et al. v. Hendrickson. were true; that he relied on them and was induced to invest the sum of eight hundred dollars. The appellants answered in several paragraphs, the fourth of which, following the order of discussion adopted by counsel, and which is, perhaps, the most convenient one, first demands consideration. That paragraph is substantially as follows: That the defendants. were members of a copartnership under the name of "The Lone Tree Medicine Company," and that the representations which the plaintiff alleges to have been made were made in reference to, and concerning the conduct, character, credit and ability, trade and dealings of The Lone Tree Medicine Company, and that the representations were made orally. A demurrer to this paragraph was sustained, and appellants insist that this was error. We shall confine our investigation and decision to the point discussed by counsel, and neither consider nor decide any other. The contention is, that there can be no recovery, for the reason that the representations were not in writing, and were made concerning the conduct, credit, ability, trade and dealings of persons other than the appellants. This position is rested upon the 6th section of the statute of frauds, which reads thus: "No action shall be maintained, to charge any person by reason of any representation made concerning the character, conduct, credit, ability, trade, or dealings of any other person, unless such representation be made in writing, and signed by the party to be charged thereby, or by some person thereunto by him legally authorized." Authorities are cited to prove that representations, made by a partner concerning a firm of which he is a member, are within the statute, and no action can be maintained against him. Devaux v. Steinkeller, 6 Bing. N. C. 84; Benjamin Sales, section 446; Addison Contracts, 832. We do not feel called upon to decide whether the statute does or does not apply to the case of a partner making representations concerning the credit or ability of his firm. The representations in this case are not to that effect, for they re |