¶1This case, having been sent back for a more complete statement, (104 Mass. 360,) comes up again upon the amended report of the auditor as an agreed statement of facts.
¶21. As to the costs and expenses of the criminal prosecution commenced against the defendant for carrying on his business, which was subsequently determined in-his favor, the report now states: “ There was no' proof that the plaintiffs took any part in the defence, or were consulted about it, or undertook to be responsible for any part of the expenses. Nor did it appear in evidence that the criminal procedure arose or grew out of the acts or doings of the plaintiffs, or the acts or doings of anybody with their knowledge or consent.” The report fails, therefore, to show that the plaintiffs were in any way chargeable for those costs and expenses; or that the prosecution was other than a mere personal affair of the defendant. It is not enough that it had reference to the carrying on of a certain kind of business by him ; or that, as the report further states, “ had the prosecution resulted adversely to the defendant, he would probably have abandoned his said business.” That alone does not show that the prosecution was a matter of joint concern; or that it should affect the profits of the business while it was carried on. The finding of the auditor upon this point is therefore affirmed.
¶32. As to the loss by fire, it now appears that the loss was of “ certain articles of shop furniture and goods, which were a part of the defendant’s stock in trade, and were used in his said business;” the business being designated as the ‘-gift-enterprise” *422business. We suppose the “ gift-enterprise ” to be some mode of conducting trade in merchandise. The profit and loss of trade in merchandise is not confined to that which results from sales,. Depreciation or advance in value of the stock unsold must also be taken into account. Depreciation may come from fluctuation of prices in the market, from deterioration in quality, or diminution in quantity, occasioned by the numerous causes incident to the business; among which, in our opinion, fire is to be included. Loss by fire, whether of goods constituting part of the stock in trade, or of shop furniture, should be deducted in making up the net profits for division.
¶4The case will accordingly be recommitted for correction of the report in this particular; unless the amount of such correction shall be agreed on; and judgment will then be rendered for the amount thus found to be due, if anything.
¶5Ordered accordingly.