agree with their workingmen upon the hours of labor or compensation, it has the same right and power to legislate in respect to private persons." But that this contention is erroneous must be deemed settled. In Lochner v. New York, 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937, the Supreme Court of the United States declared the general rule to be that the right of persons engaged in private business to make contracts in relation to such business is a part of the liberty of such persons, and is protected by the fourteenth amendment to the Constitution of the United States, and that this right includes the right to contract for labor, except where controlled by the state in the exercise of its police power. So that the three casesHolden v. Hardy, Atkin v. Kansas, and Lochner v. New York-seem to cover almost every possible feature of labor legislation, except that relating to the employment of women or children, and they determine once for all (1) that with respect to work carried on or aided by any municipal, county, or state government, or on contracts let by them, or in private work of such character as to imperil the health or lives of the workingmen, as for instance, work in mills and smelters for the treatment of ores, and in underground mines, the state may prescribe reasonable rules regulating the hours of labor and the conditions under which such work shall be done; (2) with respect to contracts relating to other classes of private work (except where women or children are employed) the state may not interfere.

In the judgment of this court chapter 50, p. 105, Laws 1905, is a valid legislative enactment, capable of being enforced. Under this view of the case, we are of the opinion that the information states a public offense.

The judgment of the district court is reversed, and the cause is remanded, with direction to vacate the judgment rendered and the order made allowing the demurrer, and to overrule the demurrer to the information. Reversed and remanded.

BRANTLY, C. J., and MILBURN, J.,

concur.

(15 Wyo. 97)

WYOMING COAL MINING CO. et al. v. STATE ex rel. KENNEDY. (Supreme Court of Wyoming. Dec. 18, 1906.) 1. STATUTES-STATUTES ADOPTED FROM OTHER STATES CONSTRUCTION IN COURTS OF ORIGINAL STATE.

A decision of the Supreme Court of Ohio construing a provision of the Ohio Code of Civil Procedure, handed down subsequent to the adoption of such Code by the state of Wyoming, is not conclusive on the courts of the latter state. [Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Statutes, § 307.]

2. MANDAMUS-CORPORATIONS-ACTS OF OFFI

CERS.

Rev. St. 1899, § 4194, defines mandamus as a writ issued in the name of the state to an

inferior tribunal, a corporation, board, or persons, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station, and section 4197 provides that the writ must not be issued in a case in which there is a plain and adequate remedy in the ordinary course of law. Held, that mandamus to compel an officer of a private corporation to permit the inspection of books, papers, and effects in his possession and control. is the proper form of remedy to enforce the right of a stockholder to inspect the books and records of the corporation, where the officer, having the custody, denies the stockholder access thereto.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 33, Mandamus, § 264.]

On petition for rehearing. Rehearing denied.

For former opinion, see 87 Pac. 337.

SCOTT, J. Plaintiffs in error have filed a petition for rehearing upon the ground that the court did not discuss the case of Cincinnati Volksblatt Co. v. Hoffmeister, 62 Ohio St. 189, 56 N. E. 1033, 48 L. R. A. 732, 78 Am. St. Rep. 707, in the opinion filed. It is urged that that decision is binding on this court as a construction of sections 4194 and 4197, Rev. St. 1899, and that so construed, mandamus was not the proper remedy. That case was decided long subsequent to the adoption of the provisions of the Ohio Code of Civil Procedure by this state, and while such adoption ordinarily bound the courts of this state to the construction which had been theretofore placed upon the provisions of the Code by the Supreme Court of that state, yet the courts of Wyoming are not so bound by subsequent construction, which construction may be persuasive, though not conclusive. The provisions of those sections were not new in this jurisdiction. Sections 607 and 608 of the Civil Code found in the Comp. Law, Wyo., 1876 are practically identical, and may be deemed to have been re-enacted and continued in force by the enactment in 1886 of sections 4194 and 4197, supra.

In Cincinnati Volksblatt Co. v. Hoffmeister, supra, Hoffmeister, a stockholder, brought suit to enjoin the company from refusing to allow him to inspect the books and records of the corporation, a right which was given him by statute, and to fix a reasonable timefor such inspection. Upon objection it was held that the suit was properly brought, and that the remedy was by injunction, and not by mandamus, on the ground that injunction afforded the plaintiff a plain and adequate remedy at law within the meaning of section 6744, Rev. St. Ohio 1906, which section is identical in language with our section 4197, supra. The court says: "The complaint of plaintiff is that he is unlawfully prevented from the enjoyment of a right which is incident to his ownership of stock, and his remedy is that the corporation be compelled to desist from such deprivation. This does not call for the performance

of an act which the law specially enjoins. It is, on the other hand, an act which may be compelled by injunction in the common and ordinary exercise of that power. There is, therefore, a plain and adequate remedy open to him in the ordinary course of the law, for, within the meaning of the statute, an equity proceeding is a proceeding of that character." Strictly speaking, the holding of that court that it was a case for injunctive relief did not amount to a construction of the statute defining the remedy by mandamus. The court determined that there was another and adequate remedy open to the plaintiff, and, that being the case, he could not resort to mandamus, and in effect the decision goes no further. The statute, conferring the right to inspect the books in that case, says: "And the books and records of such corporations shall at all reasonable times be open to the inspection of every stockholder." The court proceeds upon the assumption which is one of law that the books are so open to inspection at all times with the limitation that the times shall be reasonable. No affirmative act upon the part of any officer of the company is required or necessary to the enjoyment of such right, and the refusal by any one to permit the books to be inspected is an interference with such right. They were in the control of the company, and the application to inspect was made to the company and not to the officer charged with their custody, nor was the suit against any one other than the corporation. In the case before us the application was made to the respondent, Birkhaeuser, who was at the time vice president and acting secretary and treasurer for permission to inspect the books, but that he "(Birkhaeuser) as such vice president, acting secretary and treasurer although then and there and now in the possession and control of all the books, papers, and effects of said company in relation to its business affairs and transactions wholly failed and refused and still fails and refuses to permit the relator to inspect the same or any of them." They were in his actual custody and control by the provisions of the by-law, and they were required to be kept open for inspection during business hours. The duty to keep them open was a duty devolving upon Birkhaeuser by virtue of his official position, he having, as such officer, assumed their possession and custody. It was his duty as the actual custodian to keep them in the place required by the bylaws, open and accessible to any stockholder who desired to inspect them during business hours. This involved a duty to produce the books for that purpose, and in this respect the case is different from the Ohio Case, supra. Injunction is a preventative remedy. In the case before us the relator was denied access to the books of the company when it

was the duty of Birkhaeuser, their custodian, to produce them for his inspection. We are aware that the decisions are conflicting as to whether such duty will be compelled by mandamus. It is held by some of the courts that to do so would be to permit the use of the writ to redress private wrongs. Other courts hold that there is no other remedy at law and that the performance of the duty, though private in character, will be compelled by mandamus. 19 A. & E. Enc. of Law, (2d Ed.) p. 869, and cases there cited. The word "corporation" as used in section 4194, Rev. St. 1899, we think is a generic term, and includes public, quasi public, and private corporations. The ordinary and plain meaning of the section would seem to include these different classes and we see no reason for interpolating the words "public, or quasi public" before the word "corporation," thus giving it a restricted meaning. The remedy by injunction would, in our judgment, be inadequate. The right without interference to inspect the books might be protected by the writ of injunction in a proper case, but the refusal to permit any inspection imports also a refusal to produce the books of the corporation by the custodian. It requires an affirmative act upon the part of the custodian in order that the right may be enjoyed, and without which the relator would be powerless. As bearing on the questions presented in the case, we cite, without further comment, Angell & Ames on Corporations, page 710; High, Extraordinary Legal Remedies, section 308; Cook on Stock, Stockholders and Corporations, sections 514, 515, 516, 518.

Rehearing denied.

POTTER, C. J., and BEARD, J., concur.

(15 Wyo. 149)

LELLMAN et al. v. MILLS. (Supreme Court of Wyoming. Dec. 18, 1906.) 1. PARTNERSHIP-MORTGAGES-EXECUTION BY ONE PARTNER-VALIDITY.

Under Rev. St. 1899, § 2808, making it necessary for each member of a partnership to execute and acknowledge any instrument intended as a chattel mortgage for the partnership, it is a prerequisite to a valid chattel mortgage of partnership property that every member of the firm should sign it.

[Ed. Note. For cases in point, see Cent. Dig. vol. 38, Partnership, § 223.]

2. ESTOPPEL - DEFENSE-PLEADING-BUrden OF PROOF.

In an action attacking a mortgage executed by one partner, the existence of circumstances such as to operate by way of estoppel to prevent the assertion of a right to the property as against the mortgagee by the partner who did not sign the mortgage, or by the creditors, is defensive matter to be alleged and proved by the mortgagee.

[Ed. Note. For cases in point, see Cent. Dig. vol. 19, Estoppel, § 300.]

3. APPEAL AND ERROR-REVIEW-FAILURE TO PRESENT QUESTION BELOW.

Where a motion by plaintiff for leave to amend the petition was made and granted in open court on the hearing of a motion for a new trial, and no objection was made by defendant on the ground of absence of notice of the motion, he could not on appeal complain thereof.

4. SAME.

Where plaintiff moved in open court at the hearing of a motion for a new trial for leave to amend the petition, and the motion after hearing was put in formal shape and filed, defendant could not complain on appeal that the motion was not in writing at the time of the hearing, he not having then objected on such ground.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1207.]

5. PLEADING AMENDMENT AFTER JUDGMENT -PETITION.

Rev. St. 1899, § 3588, provides that the court may, after judgment, in furtherance of justice, amend any pleading, by inserting other allegations material to the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading to the facts proved. Section 2808 makes it necessary for each member of a firm to execute and acknowledge any instrument intended to operate as a chattel mortgage for the firm. In an action by a trustee in bankruptcy against the bankrupt and one to whom he had given a chattel mortgage, the petition alleged the existence of a partnership between the bankrupt and another, that the property covered by the mortgage was partnership property, that the other partner had consented to the inclusion of partnership property in the bankrupt estate, and that the mortgage prevented plaintiff from equitably apportioning the property mortgaged toward the satisfaction of debts filed in the bankruptcy proceedings, and it was prayed that the property be declared partnership property, and the mortgage adjudged void. Plaintiff's case was presented on the theory that the estate of the bankrupt, including the partnership property, was wholly inadequate for the satisfaction of the demands of creditors. Held that, after judgment in favor of plaintiff, it was proper to permit an amendment of the complaint by the insertion of an allegation that the "assets in plaintiff's hands were at the commencement of this action, and are at the present time and have been during the period of his trust insufficient to pay all creditors.'

6. PARTNERSHIP ACTIONS - EVIDENCE ADMISSIBILITY.

Where the issue was whether a partnership had existed between defendant and another in December of a certain year, plaintiff having the affirmative of the issue, drafts drawn on the firm during the year, the latest one being dated November 15th of such year, and which drafts were paid, were properly admitted on behalf of plaintiff.

7. BANKRUPTCY-ACTION BY TRUSTEE-EVIDENCE-ADMISSIBILITY.

Rev. St. 1899, § 2808, makes it necessary for each member of a partnership to execute and acknowledge any instrument intended as a chattel mortgage for and on behalf of the partnership. A trustee in bankruptcy sued the bankrupt and his chattel mortgagee, alleging that the property was that of a partnership composed of the bankrupt and another, and that the other had filed with the referee authority to include partnership property in the administration of the estate, and it was prayed that the mortgage be set aside. Defendants claimed that the partnership had been dissolved prior to the mortgage and that the property became that of the mortgagor. Held, that there

error in admitting in evidence the written consent of the other partner. 8. APPEAL AND ERROR-NECESSITY OF EXCEPTIONS.

The exclusion of evidence cannot be reviewed on appeal in the absence of an exception. [Ed. Note.-For cases in point, see Cent. Dig. vol. 2, Appeal and Error, § 1504.]

9. BANKRUPTCY-ACTION BY TRUSTEE-EVIDENCE-ADMISSIBILITY.

Rev. St. 1899, § 2808, provides that it shall be necessary for each member of a partnership to execute and acknowledge any instrument intended to operate as a chattel mortgage for the partnership. A trustee in bankruptcy sued the bankrupt and his chattel mortgagee, alleging that the property was that of a partnership composed of the bankrupt and another, and that the other had filed with the referee authority to include partnership property in the administration of the estate, and it was prayed that the mortgage be set aside. Defendants claimed that the partnership had been dissolved prior to the mortgage, and that the property became that of the mortgagor. Held, that there was no error in sustaining an objection to questions propounded by defendant to the referee in bankruptcy, whether the other partner did not, at the time he filed the statement, represent that he was willing that all partnership assets might be subjected to the claims of firm creditors.

10. APPEAL AND ERROR-HARMLESS ERROREVIDENCE-EXCLUSION.

Error could not be predicated on the sustaining of an objection to a question to a witness where it appeared that it was answered before the objection was made, and that the answer was in the record, so that it must have gone to the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4140.] 11. SAME-INSTRUCTIONS.

In a suit of equitable cognizance, in which a jury was called to try issues of fact, misdirection of the jury is no ground for reversal. though the cause is reviewable on writ of error, the same as in actions at law, unless such misdirection shows that the conclusion of the trial court was based upon a misconception of the law as applied to the evidence or facts in the case, under the issues.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4219.] 12. PARTNERSHIP SUFFICIENCY.

ACTION EVIDENCE

On an issue as to whether certain property mortgaged by defendant was his own or that of a partnership composed of that of himself and another, evidence held to sustain a finding that it was partnership property.

Error to District Court, Uinta County; Charles E. Carpenter, Judge.

Action by Stephen A. Mills, as trustee in bankruptcy of the estate of Fred Lellman against Fred Lellman and another. Judgment in favor of plaintiff, and defendants bring error. Affirmed.

J. H. Ryckman and S. T. Corn, for plaintiffs in error. B. M. Ausherman, for defendant in error.

POTTER, C. J. This is an action brought by Stephen A. Mills as trustee in bankruptcy of the estate of Fred Lellman, a bankrupt, against the said Fred Lellman and one Mary M. Guild (his daughter) to set aside a chattel mortgage given to the latter by Lellman De

cember 14, 1901, covering the furniture and other personal property located in the Daly Hotel in the town of Diamondville, Wyo. The petition alleged the appointment and qualification of the plaintiff as trustee of the estate of said Lellman, a bankrupt; that the mortgaged property belonged to a partnership composed of said Lellman and one James Hackman, under the firm name of Lellman & Hackman; that at the time of the execution of the mortgage and during the existence of the partnership the said Lellman and said partnership were insolvent, which fact the said defendants knew at the time of the execution of the mortgage; that Hackman, the other member of the partnership, had, in the course of the administration of said bankrupt estate, filed with the referee in bankruptcy consent and authority for the said plaintiff as trustee to include in the administration of the affairs of said estate the property of said partnership; and that the chattel mortgage aforesaid was given without consideration, and with intent to hinder, delay, and defraud the creditors of Lellman and the partnership. By amendment permitted on the trial without objection it was further specifically alleged that, on the date of the execution of said chattel mortgage, and for many years prior thereto, a partnership had existed between said Lellman and Hackman; that it had not been dissolved, and that it existed at the time of the filing by Lellman of his petition in bankruptcy. By further amendment, permitted by the court after judgment to conform to the proofs, it was alleged "that the assets in plaintiff's hands were at the commencement of this action, and are at the present time, and have been, during the period of his trust, insufficient to pay all creditors." After the overruling of separate demurrers to the petition, the defendants jointly filed an answer denying generally each and every allegation contained in the petition; and, after the first amendment to the petition, they filed an amended answer denying the partnership between Lellman and Hackman on the date of the execution of the chattel mortgage aforesaid, and alleging the dissolution of such partnership by mutual agreement, and the acts of the parties in the month of January, 1901, and that the property covered by the mortgage in question and all other property of the partnership located at Diamondville became the individual property of said Lellman, subject to the prior encumbrances thereon, and that the property of the partnership at Evanston became the individual property of said Hackman; and that, at the time the mortgage was executed, said Lellman was the owner of all the property described therein. A reply was filed denying generally the allegations of the amended answer.

A jury was impaneled in the cause and, after hearing the evidence and the instructions of the court, they returned a verdict for the plaintiff. Thereupon a judgment was entered which recited that the court adopted

the verdict of the jury, and ordered and decreed the cancellation of the chattel mortgage aforesaid. The defendants below complain of that judgment on error. It appears from the evidence that in 1899 Lellman and Hackman became partners in business at Hilliard in this state, and subsequently, as such partners, engaged in the hotel business at Evanston and Diamondville in this state. Hackman took personal charge of the business at Evanston, and Lellman at Diamondville. At the latter place they built a hotel known as the "Daly Hotel," upon which a mortgage was executed by them at or about the time that it was built to the Diamondville Coal & Coke Company, and, upon purchasing the furniture for said hotel, a mortgage covering the same was executed to the Blyth & Fargo Company of Evanston, from whom, we understand, the furniture was originally purchased, which mortgages were in existence as security for the balance due thereon respectively at the time Lellman executed the chattel mortgage in question.

Upon the trial no attempt was made to show that the mortgage sought to be canceled was without consideration. On the contrary, it appeared from the evidence introduced on behalf of the plaintiff that the claim of the mortgagee, presumably the claim intended to be secured by the mortgage, had been proven and allowed against the bankrupt estate, and. together with all other allowed claims, had been ordered to be paid out of the assets of the partnership of Lellman & Hackman, for the reason that, as found by the referee in bankruptcy, the debt had been contracted for the benefit of the partnership. Beyond proof showing the insolvency of Lellman and the partnership, there is practically no evidence tending to show actual fraud in the execution of the mortgage. Without, perhaps, entirely abandoning that feature of the case, the plaintiffs, upon the trial, relied chiefly upon the alleged fact that the mortgage covered partnership property, and that it was invalid for any purpose under section 2808, Rev. St. 1899, which requires a chattel mortgage of partnership property to be signed by each member of the partnership. And, in addition to the showing as to insolvency, the evidence of both parties was chiefly confined to proof upon the question of the existence of the partnership, and whether the property mortgaged was or was not, at the time of the execution of the mortgage, partnership property. The chattel mortgage purports to be a mortgage between the said Lellman and the said Guild, and to convey, subject to the conditions therein expressed, the personal property therein described. There is nothing in the mortgage manifesting an intention to convey merely the interest of Lellman as a partner, but the property is treated throughout the instrument as the individual property of Lellman, who alone signed and acknowledged the mortgage. Section 2808. aforesaid, provides as follows: "It shall be necessary for each member of a

copartnership to execute and acknowledge a mortgage, bond, conveyance, or other instrument intended to operate as a chattel mortgage for and on behalf of the copartnership, provided, that a chattel mortgage may be given to a copartnership in its copartnership name without enumerating the several members thereof." And section 2810 provides that a mortgage given to a copartnership shall only be released, satisfied, assigned, or transferred either by an indorsement upon the original instrument or by an instrument executed and acknowledged by each member of the

copartnership.

Section 2808 was considered and construed by the United States Circuit Court for the district of Wyoming in the case of Ridgely v. First National Bank (C. C.) 75 Fed. 808. District Judge Hallett, who presided in the trial of that case, held that, under that section, it was necessary in order to make a valid chattel mortgage of partnership property that each member of the firm should sign the mortgage. The learned judge said: "There can be no valid mortgage of copartnership property except by an instrument which shall be executed by all members of the copartnership. I do not agree with counsel that an instrument executed by part of the members of the copartnership may be a mortgage of the interest of those members in the copartnership property. In order to have a mortgage of that character, it would be necessary that the instrument on its face should purport to be a mortgage of the interests of the copartners signing it. A mortgage which on its face is made to be a mortgage of the entire partnership property, and is signed by some of the members of the partnership, but not all, is, in my judgment, under this statute, a void instrument, of no force and effect, either of the partnership property, or the interest of the persons signing it in the partnership property." And it was held that such a mortgage, not signed by all of the members of the partnership, differed from a mortgage valid upon its face, but alleged to have been fraudulently made, in respect to attacks upon it by creditors and others; the following statement being made on that subject: "As to what was said by counsel as to the position of a creditor in attacking a chattel mortgage, to the effect that one must have process, and must appear in the attitude of a creditor, I think that applies to the case of a mortgage which may be recognized as such." In concluding the opinion it was said of the mortgage there in question which had not been signed by one of the partners, "I think it was never a mortgage of the copartnership property, and that it did not convey to the plaintiffs any interest whatever in the copartnership property." In that case the holders of the mortgage had brought suit to recover the proceeds of sales of certain property described in the mortgage which had been turned over to the defendant by the firm, subse

quent to the execution of the mortgage, to satisfy a debt due from the firm; and the court treated the defendant as a purchaser, and, as already indicated by quotations from the opinion, the defendant was permitted to attack the mortgage as void because of its improper execution.

We do not understand that counsel here dispute the correctness of the construction placed upon the statute in that case. Indeed, without objection, the trial court, in its instructions to the jury, quoted the material clause of section 2808, and stated that if the jury should find from the evidence that the partnership of Lellman & Hackman was an existing partnership at the time of the execution of the mortgage, and that the mortgage was given upon the partnership property, and was not executed and acknowledged by each and every member of the partnership, then, and in that event, the mortgage would not be a valid mortgage of the copartnership, and would not bind the copartnership property. And, at the request of defendants below, the jury were instructed that if they should find from the evidence that the partnership had been dissolved prior to the execution of the mortgage, and that the property described in the mortgage thereby became the individual property of Lellman, and was his individual property, and not partnership property, when the mortgage was executed, and that he had a right then to mortgage it, then the verdict should be for the defendants. We are satisfied that those instructions correctly stated the law of this state upon the subject. It is evident that the Legislature intended as a prerequisite to a valid chattel mortgage of partnership property that every member of the partnership should sign it, and the language employed clearly expresses and carries out that intention.

Where, in the absence of statutory regulation, it has been held that one partner may execute a valid chattel mortgage upon the property of the partnership to secure a partnership debt, that rule has been adopted in view of the ordinary relations existing between partners and between each of them and the property of the firm, and the power of each partner in respect to such property and the firm business. Every partner is generally regarded as the general agent of the firm to carry out its objects and transact its business in the ordinary way. And hence it has been held, and that is no doubt the prevailing rule in the absence of statute, that each partner, by virtue of the relation of partnership, and of the community of right and interest of the partners, has full power and authority to sell, pledge, or otherwise dispose of all personal property belonging to the partnership, for any purpose within the scope of the partnership business, and may, therefore, without the concurrence of his copartners, mortgage the partnership property to secure the payment of a partnership debt.