criminal offence, and must set forth an instrument in its nature and upon its face of a character to injure some one, or must show this by averment of extrinsic facts. It was not intended to say that every indictment charging forgery, which alleges that the act was done with intent to defraud, should be suffi cient. As well there might be said that, under the language of the same section, every indictment charging the offence of obtaining property by false pretences, which alleges that the act was done with intent to defraud, is sufficient-a proposition which was distinctly repudiated by the Supreme Court in Com. . Frey, 14 Wright, 245, where it was expressly ruled that such an indictment in order to be good, must set forth particularly what the false pretences were." Judge Thayer further says in the

same case:

"This section of the Criminal Procedure Act was not intended to authorize a loose method of criminal pleading, by which an accused person might be put upon trial upon general, vague, indefinite, and insufficient charges, but only to compel him to make his objections to the indictment before the trial instead of afterwards, and this is the construction which has been put upon it by this court, in Com. v. Galbraith, 6 Phila. Rep. 281, and by the Supreme Court in Com. v. Frey, 14 Wright, 249."

People Foote, 52 N. W. 1036 Mich. (1892):

Variance between complaint and warrant not fatal when complaint contained the truth.

Asking defendant of criminal acts when under cross-examination. Perjury.-Walker v. State, 11 So. R. 401 (Ala.): Indictment which

alleges proceeding in which oath was taken, name of officer before whom taken, his authority to take it, its falsity and materiality. Rivers. States, 12 So. R. 434. Ala. (1893) Indictment for perjury must state the facts falsely sworn to, and the officer or court before whom or in which the offence was committed. Indictment charging that defendant did corruptly give or offer to give $3 with intent to induce him to commit a certain crime punishable as felony, to wit, the crime of perjury, was insufficient. Williams v. Com. 91 Pa. 493 (1879): Indictment for perjury. Oath was set out. Motion to quash denied, but Bill of Particulars granted, Justice Trunkey saying: "In simplifying the indictments it was not the intention to make their brief and comprehensive terms a cover for snares to be sprung upon the accused." Grattan v. State, 71 Ala. 244 (1892): Not sufficient to follow words of statute unless the indictment alleges the fact in doing or not doing of which the offence consisted.

Offences against the Liquor Laws. -U. S. Simmins, 96 U. S. 360: Indictment for illegal distilling. Defendant was charged with procuring to be used, a still. Held, that the party who used the still should be named. "The accused must be apprised with reasonable certainty of the accusation against him.... ... an indictment not so framed is defective although it may follow the language of the statute.” State . Stephen, 12 So. R. 883; Seifried . Com. 101 Pa. 200: Indictment under general liquor law, act committed in a locality having a special prohibitory status. Indictment held insufficient.

Offenses against the Post Office

Laws.-U.S.. Hess, 124 U. S. 204: Indictment for "scheme to defraud .... by means of the post office establishment of U. S." Indictment in words of statute insufficient.

Blasphemy.-Undegraff 7. Com. 11 S. & R. Pa. 410: In an indictment for blasphemy, words complained of should be set out. Com. v. Prenner (Anarchist Case), Q. S. Phila., December Term, 1891, No. 494. M. S. S.

Slander.-Davis . State, 22 S. W. 979, Texas (1893): Information for slander described words spoken in presence of P. Complaint had stated them as being spoken in presence of G. Held, variance.

Libel.-Miles v. State, 11 So. R. 403, Ala. (1892): An affidavit which does not charge an offence, does not authorize the issue of a warrant and subsequent prosecution. Defendant tried for defamation. Affidavit that defendant "maliciously spoke. . . . imputing the commission of a felony by J. W. R." While in the words of the act the statute does not prescribe with definiteness the constituents of the offence. "The defendant has the

constitutional right to demand the nature and cause of his accusation, so that he may identify the particular charge and offence:" Turnipsced v. State, 6 Ala. 666; Anthony . State, 29 Ala. 28; Beasley v. State, 18 Ala. 535; Grattan v. State, 71 Ala. 344; Carter v. State, 55 Ala. 181; Luter v. State, 225 W. 110 (Tex.); 15 Criminal Law Mag., pages 750-56.

Murder.-Little v. State, 33 N. E. R. 417 (1893), Ind: Indictment for murder in words of statute. Held, bad as not giving circumstances. Citing: State v. Record, 56 Ind. 507; 10 Amer. & Eng. Ency. 522; 1 Best Criminal Practice, 599-600; Shepherd . State, 54 Ind. 25; Howard. State, 67 Ind. 401; Thomas . Com. 20 S. W. 226, Kentucky (1892).

Larceny.-State v. Van Cleve, 32 PAC. R. 461 (Washington): Name of owner material. Amendment not allowed. McCowan v. State, 22 S. W. 955 Ark. (1893): Indictment for larceny charging theft of two jackets owned by “Conneevey & Co.," names of firm not stated. Held, insufficient.

E. C. R.

tenden v. Witbeck, 50 Mich. 401; S. C., 15 N. W. Rep. 526. And the probability that its old customers will continue their custom and commend it to others: Myers 7. Kalamazoo Buggy Co., 54 Mich. 215.

These definitions, however, are only partial. While it is true that the main business of a firm is securing customers, and then serving them, it is equally clear that the valuable element of the goodwill is that which attracts the customers. That is, that in order to properly define goodwill, we must go back of the vague generalizing 'which speaks of it as the probability of securing the old customers, and specify the causes which create that probability. It is true that in so doing we are going beyond the proper bounds of a definition, for these causes are legion; but nothing else can give an adequate idea of what goodwill really is. Accordingly, the description given by Mr. Justice STORY, in his work on Partnership (7th Ed.), 99, is far preferable to any of those previously cited. "This goodwill," he says, "may be properly enough described to be the advantage or benefit which is acquired by an establishment beyond the mere value of the capital stock, funds, or property employed therein, in consequence of the general public patronage and encouragement, which it receives from constant or habitual customers, on account of its local position or common celebrity, or reputation for skill or affluence, or punctuality, or from other accidental circumstances or necessities, or even from ancient partialities or prejudices." Yet this, too, is too bulky to be of practical use: and what more does it amount to than

that the goodwill of a business is the right to succeed to it, or to carry it on as the successor of the old firm? This last definition, it is contended, covers every material point, and does away with a great deal of the haze which, as we shall sce, still clings around the subject.

(b). The sources of goodwill being so various, it is evident that it must be an open question whether, in a given case, it is an incident of the trade of the premises on which it is carried on, or of the personnel of the firm; and that that question can only be settled on the special circumstances of the case. It has been said that the general rule is to regard the goodwill as an incident of the premises: Rawson v. Pratt, 91 Iud. 9; England v. Downs, 6 Beav. 269; Austen z'. Boys, 2 DeG. & J. 626; S. C., 4 Jur. N. S. 721; Bergamini v. Bastian, 35 La. An. 60; Elliott's App.. 60 Pa. 161. And there are many cases in which this would be true, as in case of a tavern or a hotel: Elliott's App., supra. Or where business and premises are both leased: Chittenden v. Wiltbeck, 50 Mich. 401; S. C., 15 N. W. Rep. 526; Chissum . Dewes, 5 Russ. 29; Mitchell v. Reed, 19 Hun. (N. Y.) 418; S. C., & N. Y. 556. But when the business is carried on independently by the firm, and the premises only are leased, it certainly seems the better opinion to hold the goodwill an incident of the trade: Succession of Jean Journé, 21 La. An. 391.

A good instance of the absurd results to which the strict application of this rule wonid lead, is to be found in Austin v. Boys, 2 DeG. & J. 626; S. C., 4 Jur. N. S. 721, where it was gravely ruled that goodwill, being connected with place, was inapplicable to the busi

ness of a solicitor, which has no local existence, but is purely personal, depending on the trust and confidence which persons may repose in the integrity and ability of. the solicitor to conduct their legal affairs. But why should they not repose the same confidence in his integrity and ability to select a proper successor? At any rate, the validity of the sale of the business of a professional man (except a clergyman, who is too apt to have no good will to dispose of), is too well settled to be called in ques tion; and nothing but the goodwill can pass by such a sale, unless we are to assume that the vendee was too innocent to know that he pays an exorbitant sum for the mere material subjects of the

contract.

Goodwill, then, does not necessarily depend exclusively on locality, it may also depend, to some extent, on the personal qualities of the proprietor of the business; and though this is a matter very difficult to transfer, there seems to be no doubt that it can be done, figuratively at least, in such a way that the vendee can reap some benefit from it; and that is all that any sale of goodwill amounts to. It is equally clear that it may depend upon the nature of the trade, in certain instances, as where certain patents are owned by the firm, or it has the reputation of making a certain brand of goods; and this is especially true in modern times, when goods are sent to such distances for sale. It makes no difference to the man who wants a Winchester rifle, a Remington typewriter, or a Disston saw, whether those articles are made in Massachusetts, Pennsylvania, or P'atagonia. What difference, then, could

locality make if the right to make and sell those goods were to be sold?

(c). But whether dependent on person, trade, or place, the goodwill of a business is a valuable property right: Potter 7. Comrs., 10 Exch. 147; Senter . Davis, 38 Cal. 450. It is part of the assets of a business: Wallingford v. Burr, 17 Neb. 137. It is part of the assets of a decedent: Succession of Jean Journé, 21 La. An. 391, and must be accounted for by his personal representative. If an executor conducts the business as his own, he is chargeable with the value of the goodwill; but that goodwill does not include the right to use the name of the decedent: Randell's Est., S N. Y., Suppl. 652. It is equally a part of partnership property: Bell 2. Ellis, 33 Cal. 620.

Goodwill may be the subject of a contract of sale: Carruthers McMurray, 75 Iowa, 173, but only in connection with the business, of which it is an incident. It cannot be sold apart from that business, either by judicial sale, or otherwise. A mortgage of the "machinery, type, presses, cases, furniture, paper, forms and tools of a newspaper company, together with the goodwill" of its business, cannot be foreclosed as to the goodwill, after all the tangible property covered by the mortgage has been alienated, worn out, or destroyed, and the corporation has become consolidated with another newspaper corporation: Met. Natl. Bk. v. St. L. Dispatch Co., 36 Fed. Rep. 722.

A misrepresentation in regard to the goodwill of a business is, when the two are sold together, material and fraudulent: Cruess v. Fessler, 39 Cal. 336. And when the con