Prewett et al. v. Buckingham. and his representatives for about eleven years, and for seven or eight years after the dissolution of the firm, during all which time they had the exclusive use and benefit of it, without any claim to it on the part of the complainant, or any effort to subject it to the partnership debts. This would create a strong presumption that any interest which the complainant may have had in it, was waived or released by agreement between the partners; and it would be incumbent on him to show clearly, upon an account taken of the partnership transactions, that he had a just claim upon the property, before it could be subjected to that claim. The bill is very vague and uncertain as to the foundation of the complainant's claim, except so far as it proceeds upon the claim of the attorneys, which we have above seen cannot be maintained. We have, therefore, to look to the prayer in order to ascertain its character, and we find that the foundation of the relief sought is an account of the partnership affairs. It is true, that a sale of the land is also prayed, but it is manifest that this must be subordinate to the account, for if on taking the account it should appear that the complainant was indebted to the deceased partner in a larger amount than the complainant's interest in the land was worth, it cannot be pretended that the complainant could demand a sale of the land, there being no debts to be paid. Considering this bill, therefore, as entitled to occupy no better position than a bill for an account, it is well settled that the statute of limitations is a bar to a bill filed for an account of partnership transactions. Gow on Partnership, 102; Angell on Lim. (2d edit.) 160. 2. But if the bill be considered as a bill to recover the moiety of the land or of its value upon a sale, as partnership property remaining after the payment of all debts against the firm, is it not equally liable to the defence of the statute of limitations? It may be said that Hardy held the land as a trustee for the firm, in virtue of his written agreement, acknowledging that he purchased it for the firm, and that he held it as partnership property, and therefore that the right of the surviving partner is Prewett et al. v. Buckingham. not barred, but that he is entitled to the possession and control of the land as partnership assets. It is true, that Hardy purchased and held the land in trust for the firm; but it was a resulting trust. By the sheriff''s deed, which was made to him upon its face in his individual right, the absolute legal title was conveyed to him. The written agreement subsequently made by him, did not create a direct, technical trust, but was merely evidence that he held the legal title subject to the equitable rights of the firm. In such cases, the rule is, that when a party acquires title or possession of property in his own name, and is afterwards by matter of evidence or construction of law changed into a trustee, the statute of limitations is a bar. Angell on Limitations, (2d edition,) 511. Because it is a resulting trust against which the statute runs. Ib. 508. For the same reason, it cannot be objected to the operation of the statute, that the possession of the trustee was the possession of the cestui que trust; for this applies to cases of direct technical trust and not to resulting trusts. But even if this were a case of direct trust, there is much ground, from the evidence, for the opinion, that the deceased partner assumed absolute ownership and held it for a period of time sufficient to bar the complainant's claim. The facts tending to this conclusion are the declarations of Hardy, shown by the complainant, that the firm was considerably in arrears to him, and that it was agreed that he should take the land at the sum of $1,000, on a settlement made or to be made between them. In addition to this is the fact, that the complainant made no claim to the property during Hardy's lifetime, but permitted him to treat it as his own for a period of ten years. Upon consideration of the whole case, we are satisfied that the statute of limitations is a good bar to the relief prayed for, and that the bill should have been dismissed. The decree is reversed, and the bill dismissed with costs. 28 100 72 131 Jesse (a slave) v. The State. JESSE (a slave) v. THE STATE OF MISSISSIPPI. Where a slave is indicted under the statute (Hutch. Co. 521, § 55) which Malice is of the essence of the crime of arson at common law, and the same The rule is settled that every error in substance in charging the offence, which Loper v. The State, 3 How. 429, and Brantley v. The State, 13 S. & M. 468, cited and explained by the court, and confirmed. IN error from the circuit court of Carroll county; Hon. Wm. L. Harris, judge. The facts of the case are sufficiently set forth in the opinion of the court and the brief of appellant's counsel, where also will be the instructions of the court below. J. Y. George, for appellant. The indictment is fatally defective, because it does not charge, either directly or by necessary implication, that the burning was malicious. As a preliminary question to this it is necessary to determine, whether upon the one hand the statute upon which these proceedings are based, (Hutch. Code, 521, § 55,) creates a distinct statutory offence, prescribing a definition of all the facts which constitute the crime; or whether, upon the other hand, the statute merely refers to a common law offence by its popular name Jesse (a slave) v. The State. and provides a penalty for its commission; or whether it defines the offence by terms constituting a legal conclusion, instead of prescribing a definition of the facts which in law constitute the crime. If either of the last two hypotheses be true, then the indictment should be drawn as at common law; if the first be correct, then it should follow, substantially, the words of the statute. Wharton's Crim. Law, 134. I insist that the statute cannot, with any propriety, be construed to create an offence, containing a definition of all the facts which constitute it. There are eleven distinct offences mentioned in the section of the statute under consideration, for the commission of either of which by a slave, the penalty is death. It is manifest that the legislature did not intend in the section under consideration, to define the facts constituting the offences therein mentioned. If such be the intention of the legislature, they were singularly unfortunate in making that a capital offence which may be done or committed, as a most innocent transaction, although attended by every fact or circumstance mentioned in the statute. For a slave may, by his master's direction and consent, burn his master's own barn, not situated where by any possibility any damage or loss could arise to any third person. Again, if we look at the context, the intention to prescribe a punishment for crimes, instead of a definition of them, becomes more manifest. It will not, I presume, be contended that under the same section, a slave could be lawfully indicted, "that, &c.,. he attempted to commit any capital crime;" or, "that, &c., he was, voluntarily, accessory before the fact in a capital offence;" or, "that, &c., he was guilty of a capital crime;" or, "that, &c., he was guilty of any other crime made capital by law," without charging what particular crime and the facts necessary to constitute it. Yet if these phrases constitute a definition of the facts constituting the several offences, such indictment would be good. Under such an indictment, a slave might be tried either for murder, arson in the first degree, or treason, without any notice which of these several offences were intended to be alleged Jesse (a slave) v. The State. against him. And if he should be so fortunate as to be acquitted upon the charge selected for his trial by the district attorney, under the indictment, he might afterwards, under a similar one, be tried for the same offence without any possibility of pleading and proving by the record his former acquittal. I conclude, then, that the statute does not furnish us with a definition of the facts constituting the crime for which defendant stands indicted, but that we must look to the common law for such definition, and for the rule by which the indictment must be framed. Arson is the wilful and malicious burning of the house or outhouse of another. Whart. C. L. 534; 4 Black. Com. 220. At common law it is necessary to aver that the offence (of burning) was committed wilfully and maliciously as well as feloniously. 2 East, P. C. 1033; 1 Hawk. P. C. 140; Whart. C. L. 537. In an indictment under the statute of 9 Geo. 1, it is necessary to aver that the burning was malicious, although the statute does not contain these words, for the malice is the essence of the offence. 2 East, P. C. 1033. This indictment does not contain the word malicious, and is, therefore, fatally defective at common law, unless the above authorities are wrong, and unless it be unnecessary to aver in an indictment the fact which constitutes the essence of the crime, or that without which it is no crime at all; a position which is simply absurd. But if I should be mistaken in supposing that this indictment must be tried by the standard of the common law, instead of by the statute, I insist that it is defective in not containing the statutory definition. "Where the words of the statute are descriptive of the offence, the indictment should follow the language of the statute." "It is necessary that the defendant should be brought within all the material words of the statute, and nothing can be taken by intendment." Whart. C. L. 132, 133. "It is a general rule, that all indictments upon statutes, especially the most penal, must state all the circumstances which constitute the definition of the offence in the act, so as to bring the defendant precisely within it. They must also pursue the precise and technical description of the offence. This rule was not followed in |