v. Duncan, 164 id. 360.) As the indictment does not allege that the American Express Company is a joint stock company, the usual attributes of that sort of company are not to be implied, and the statements of counsel add nothing to the averments of the indictment. If the company owes its existence to the statute of any State and is such an entity as may own property by the name of "American Express Company," the facts should have been alleged.

The indictment does not aver that the American Express Company is a corporation, but describes it as "an association." The term "association" is used to designate a body of persons acting together without a charter but upon methods and forms used by incorporated bodies for the prosecution of some common enterprise. (4 Cyc. 301; 3 Am. & Eng. Ency. of Law,-2d ed.—162.) It is a word of vague meaning, used to indicate a collection of persons who have joined together for a certain object. That object may be the benefit of the members, or the improvement, welfare or advantage of the public, or some scientific, charitable or similar purpose. It is applied sometimes to large partnerships or unincorporated companies, and sometimes to corporations formed not for profit but for the advancement of some object in which the members are interested. Rapalje & Lawrence's Law Dict.; Webster's International Dict.; Standard Dict.

Section 82 of division I of the Criminal Code, which relates to embezzlement of the property of any person, bank, incorporated company or co-partnership by a cashier or other officer, clerk, agent or servant, provides that it shall be sufficient to allege, generally, in an indictment an embezzlement of the funds of the person, bank, incorporated company or co-partnership to a certain value or amount without specifying any particulars of such embezzlement, and it is argued that this section authorizes an averment that the property embezzled is the property of a co-partnership, without giving the names of the partners.

Manifestly, the primary purpose of that section is to obviate the necessity of specifying particulars where the funds have been in the possession of the accused as an officer, agent or servant of the owner, which might be attended with much difficulty. The first count of the indictment alleged that plaintiff in error was the clerk and agent of the express company but did not aver that it was a copartnership, and the question whether it would have been necessary to give the names of the partners if it had contained such an averment does not arise. The indictment is wholly lacking in any averment of ownership in any person, corporation or other entity that may be the owner of property. The courts must abide by long established and well known rules of law, and it is not too much to require reasonable attention to such rules in drawing indictments. The judgment of the criminal court is reversed.

· Judgment reversed.

SYDNEY STEIN, Defendant in Error, vs. GUSSIE KAUN, Exrx., Plaintiff in Error.

Opinion filed February 16, 1910.

1. MORTGAGES—whether giving new note operates to discharge mortgage depends upon intention of parties. Whether the giving of a new note operates to discharge a mortgage depends upon the intention of the parties, and it is competent for them to agree to preserve its validity as a lien.

2. SAME-when giving new note and mortgage does not extinguish trust deed. Where the grantor in a trust deed, in arranging to give a new note and mortgage to a third person for the same debt, agrees that the mortgagee shall purchase and hold the trust deed and note secured thereby as additional security, the trust deed and note are not extinguished by the giving of the new note and mortgage, but remain a valid lien until the debt is paid or the lien is otherwise discharged.

3. SAME-payment of interest tolls the Statute of Limitations. Payment of interest on a mortgage note by the mortgagor or on

her behalf tolls the Statute of Limitations, and a suit to foreclose the mortgage may be begun at any time within ten years after the last payment on the note.

4. SAME-act of mortgagor which tolls Statute of Limitations is binding upon her grantee with notice. Any act by the mortgagor which arrests the running of the Statute of Limitations against the mortgage debt is binding upon her grantees with actual or constructive notice of the mortgage.

5. SAME-rule as to solicitor's fees on foreclosure where the solicitor and mortgagee are law partners. No solicitor's fee can be allowed to the mortgagee if he acts as his own solicitor in foreclosing the mortgage, nor can an allowance be made for the services of the law firm of which he is a member, and before an allowance can be made to his law partner, as solicitor, it must be shown that such partner is acting for his individual benefit and not for the benefit of the firm.

WRIT OF ERROR to the Branch Appellate Court for the First District;-heard in that court on appeal from the Circuit Court of Cook county; the Hon. JULIAN W. MACK, Judge, presiding.

SAMUEL B. KING, and JULE F. BROWER, for plaintiff in error.

PHILIP STEIN, for defendant in error.

Mr. JUSTICE DUNN delivered the opinion of the court:

This writ brings before us for review the record of the Branch Appellate Court for the First District which affirmed a decree of foreclosure rendered by the circuit court of Cook county.

On December 22, 1891, Susan Weiss and Nicolaus Weiss, her husband, executed a trust deed to Edwin G. Foreman to secure their promissory note of that date for $2500, payable to their own order three years after date, endorsed in blank by them and delivered to Foreman Bros. This note was not paid at maturity but the interest was paid semi-annually until December 22, 1897. In the mean

time Susan Weiss and her husband had separated, and on August 11, 1895, two deeds for the premises included in the trust deed were executed, one conveying them to Mrs. Weiss' brother, Anton Wolf, and the other conveying them back to Mrs. Weiss. At the same time an agreement between the husband and wife, reciting the existence of an ante-nuptial agreement between them whereby Nicolaus was entitled to certain rights (not now necessary to be specified) in Susan's property, was executed, by which Susan agreed to convey to Nicolaus her interest in certain premises other than those included in the trust deed and pay him $300, and in consideration thereof he agreed to release all interest acquired by virtue of the said antenuptial agreement. It was further recited in said agreement "that in the event of the death of Susan Weiss before the death of the said Nicolaus Weiss, the said Nicolaus Weiss, instead of having the full power and control of said property, Nos. 455 and 457 South Canal street, [the premises mentioned in the trust deed,] is to have no power or control of said property whatever, but this property is to descend to and become the absolute property of my children, who are named as follows: Joseph Kaun, William Kaun, Anton Kaun, Antonia Miller, Wilhelmina Pfister, immediately upon the day of my death, the said Nicolaus. Weiss hereby relinquishing all claims whatsoever, including the release and waiver of the right of homestead, also the release and waiver of the right of dower, also the release and waiver of the right to administer upon my estate, real or personal." Nicolaus and Susan Weiss did not live together after the making of this agreement. She obtained a divorce from him in December, 1902. The agreement was recorded February 11, 1896, and the deed to Anton Wolf was recorded October 1, 1897, but his deed back to Mrs. Weiss was not recorded until October 28, 1899. The title to the premises at the time of the execution of the trust deed was in Mrs. Weiss, and immediately

after the execution of the deeds and agreement just mentioned she began to reside upon the premises with her children and has ever since occupied them as her homestead.

In December, 1897, Foreman Bros., being unwilling to carry the loan longer, Mrs. Weiss and her brother, Anton Wolf, applied to W. Arthur Waide to obtain a loan on the property and gave him an order on Foreman Bros. for the abstract. He arranged with defendant in error to make the loan, prepared the papers, had them recorded, had the abstract extended and delivered it to the defendant in error. At this time the deed to Wolf and the agreement between Mrs. Weiss and her husband were recorded but the deed back to Mrs. Weiss was not. Upon examination of the abstract the defendant in error, although satisfied with the security, would not accept the title, on account, as he said, of the family matters. He was willing, however, to purchase the Foreman note and hold it as additional collateral security for the $2500. He and Waide testify that Mrs. Weiss was informed of this arrangement and assented to it, though she disclaims any knowledge of it. He did purchase the Foreman note, giving $2500 therefor, and receiving the note, endorsed in blank, and the trust deed. He also received from Anton Wolf the latter's promissory note dated December 16, 1897, payable three years after date to the order of defendant in error, for $2500, secured by a trust deed to W. Arthur Waide upon the same property as the Foreman trust deed. Upon the maturity of this note the defendant in error, in writing, extended the time thereof for five years so long as Mrs. Weiss should promptly pay the interest thereon, and Mrs. Weiss executed notes for the semi-annual payments of interest during the extension. At the expiration of the extended time default was made in the payment of the principal, and on June 30, 1906, the defendant in error filed a bill setting up both mortgages and praying for a