3. In proceedings supplementary to execution, issues of fact are properly tried by a jury as in ordinary civil cases.

4. After hearing affidavits upon the question

whether or not there had been an agreement that the application for a new trial might be made at the term next after the trial, the court struck out the application. Held that, it being doubtful whether such an agreement would be binding unless in writing, or entered upon the minutes, and there being evidence to sustain this ruling, it would not be disturbed.

Appeal from circuit court, Clinton county; A. E. PAIGE, Judge.

Proceedings supplementary to execution by Edwin Clark against Mary Ann and William S. Lee, as debtors of Milton C. Clark, the judgment debtor, the American White Bronze Company being subsequently brought in by amended complaint, as as serting some claim to the indebtedness. Defendants appeal from a judgment in favor of plaintiff, and from an order striking out their application for a new trial.

M. E. Clodfelter and Sheridan & Merritt, for appellants. Albert D. Thomas, for appellee.

MITCHELL, C. J. This was a proceeding supplementary to execution, and was originally instituted by Edwin Clark against Mary Ann and William L. Lee. The plaintiff charged in his complaint that he had recovered a judgment in the Montgomery circuit court against Milton C. Clark for a sum named; that he had caused execution to be placed in the hands of the sheriff of Montgomery county, that being the county in which Milton Clark, who was alleged to be an unmarried man, resided. It was also charged that Mary Ann Lee and William L. Lee were each indebted to Milton C. Clark in specified sums, which the latter was not entitled to claim as exempt from execution, and which he unjustly refused to apply to the satisfaction of the judgment and costs theretofore recovered by plaintiff. Subsequently, it appearing that the American White Bronze Company was asserting some claim to the indebtedness due from Mary Ann and William L. Lee to Milton C. Clark, that company, upon the order of the court, was made a party, to answer to any claim or interest it had to the above indebtedness. This was done by means of an amended complaint, in which it was alleged that the bronze company claimed to be the owner of the indebtedness due from the Lees to Clark, and in which it was averred that the company had no interest. There was no error in this order requiring new parties to be brought in. Although at one time denied, it may now be accepted as settled that, in proceedings of this character, parties may be brought in by proper pleadings, and required to answer in respect to any interest or conflicting claim which they may have or assert to the property or indebtedness due the execution defendant which is sought to be reached. McMahan v. Works, 72 Ind. 19; Railway Co. v. Howes, 68 Ind. 458; Burkett v. Holman, 104 Ind. 6, 3 N. E. Rep. 406.

There is no valid objection to the complaint. The facts therein stated were sufficient to require all the defendants to answer. It is enough to say that the answer

of the American White Bronze Company, which purported to be a plea in abatement, did not state facts sufficient to abate the proceeding. It was not a sufficient plea of a prior action pending. It did not show that another action was pending between the same parties, involving the same cause of action, at the time this proceeding was commenced. 1 Work, Pr. 567; Morris v. State, 101 Ind. 560.

It is also settled that in a proceeding of this character, where issues of fact are joined, a jury trial, as in ordinary civil cases, is proper. McMahan v. Works, supra.

The verdict of the jury was general for the plaintiff, and was not defective. The whole issue was found. There was therefore no ground upon which to predicate a motion for a venire de novo.

The statute requires that the application for a new trial must be made during the term at which the verdict or decision is rendered, or, if the verdict or decision be rendered on the last day of the session or term of court, then on the first day of the next term. Section 561, Rev. St. 1881. The verdict in the present case was not rendered on the last day of the session or term, and the application for a new trial was not made until the next term of court. The court heard affidavits upon the subject of whether or not there had been an agreement between the attorneys that the application might be made at the ensuing term, and, after considering the affidavits, sustained the motion to strike out the application. It would be exceedingly doubtful whether an attorney would have aŭthority to bind his client by such an agree ment, unless it was entered upon the minutes of the court, or made in conformity with the provisions of the statute. Section 968, Rev. St. 1881; Railway Co. v. Boland, 70 Ind. 595; Hudson v. Allison, 54 Ind. 215. We cannot disturb this ruling. There was evidence tending to sustain the ruling of the court. The judgment is affirmed, with costs.

(122 Ind. 399)

JOSEPH V. FISHER et al. (Supreme Court of Indiana. March 1, 1890.) POWER OF ATTORNEY-Dower.

1. A power of attorney to sell land and receive payment, though ineffectual, because the officer who took the acknowledgment was not authorized thereto, confers authority to make an executory contract for the sale of land, which is not affected by the subsequent marriage of the principal; and a deed executed by the attorney in his own name, without disclosing his principal, though, for that reason, not a valid execution of the power, is competent evidence to show the sale of the land, and payment of the price, and vests in the vendee an equitable title.

2. While the vendee, under such a contract, was in possession, and entitled to enforce a conveyance of the legal title, the Indiana statute abolishing dower, (1 Rev. St. 1852, p. 248,) and giving to married women, instead, an inchoate estate in fee-simple in one-third of the husband's real estate, took effect. Held that, though the vendor's wife lost her dower by the repeal of the old law, the vendee's vested interest was not charged with the inchoate fee-simple estate substituted therefor.

Appeal from circuit court, Wells county; W. H. CARROLL, Special Judge. Action by Susan S. Joseph against Me1

vina B. Fisher and another for the partition of certain real estate in which she claimed to own one-third as widow of Lewis A. Joseph. Plaintiff appeals from a judgment for the defendants.

W. S. Shirley and W. R. Harrison, for appellant. Adams & Newley and Jordan & Matthews, for appellees.

MITCHELL, C. J. Susan S. Joseph instituted this suit for the partition of certain real estate in Wells county, of which she claimed to own an undivided one-third as widow of Lewis A. Joseph, deceased. The facts as specially found by the court are that Lewis A. Joseph became the owner of the land in controversy, by patent from the United States, in the year 1849. In May, 1851, he executed a power of attorney which by its terms purported to confer authority upon Asa S. Joseph to bargain, sell, and convey the land described, and to receive payment of the purchase money. This paper was acknowledged before a master in chancery, and because that officer, under the statute then in force, had no authority to take the acknowledgment of deeds or other instruments which were required to be acknowledged in like manner as conveyances were required to be, the power of attorney was ineffectual as an authority to convey. On the 25th day of September, 1851. Asa S. Joseph, assuming to act under the power of attorney above mentioned, sold the land to John Scott, and, intending to execute the power, made a conveyance to the purchaser, in which the receipt of the purchase price is acknowledged. The deed was made by him in his own name, without any reference to the power or to his principal, and was therefore void as a conveyance, without regard to the invalid acknowledgment of the power of attorney. Scott took possession under the purchase so made, and, claiming to be the owner, made lasting and valuable improvements on the land prior to January 1, 1853. The purchaser and his grantees have remained in possession continuously ever since. The defendants claim by mesne conveyance through Scott. The plaintiff was united in marriage with Lewis A. Joseph on the 5th day of June, 1851, which was after the power of attorney was executed as above, but before the sale and conveyance, or attempt to convey, to Scott. She remained his wife until he died, in 1885; and no other conveyance of the land had ever been made by Joseph or his wife than that above mentioned. Upon the foregoing facts, the court stated conclusions of law to the effect that the power of attorney above mentioned_conferred valid authority upon Asa S. Joseph to make an executory contract of sale of the lands in controversy, and that the sale to Scott on the 25th day of September, 1851, and the possession taken by him under the purchase, vested in the purchaser an equitable title to the land which was not divested or diminished by the act which took effect May 6, 1853, [1 Rev. St. 1852, p. 248,] abolishing dower, and that, dower having been abolished, the plaintiff took no estate in the lands upon the death of her hus

band. The power of attorney, because of its defective acknowledgment, did not vest the agent therein appointed with authority to convey the land. All that is claimed for it is that the principal thereby conferred authority upon the agent to make an executory contract of sale, and receive the purchase price. For all these purposes, the power conferred was unquestionably ample and valid. It is conceded, too, that the deed made by the agent in his own name, without assuming to convey in the name of his principal, was not a valid execution of the power, even if that had been regularly executed and acknowledged. It is claimed, however, that the deed was competent as an item of evidence to show a sale of the land, and the payment of the purchase price; the receipt of the purchase money having been therein acknowledged. It was undoubtedly competent evidence for these purposes, and also to show the claim under which the purchaser went into the possession of and held the land.

A sale having been made under a power which conferred ample authority to that end, and the purchaser having paid the purchase price, and entered into possession, in pursuance of his contract of purchase, it follows that when the act of 1852, which abolished dower, took effect, the purchaser was in possession under a valid executory contract of purchase. He was, as the court below concluded, the equitable owner of the land, entitled to enforce a conveyance of the legal title, subject only to such a right of dower as the law gave to the vendor's wife at the time the contract of purchase was completed. The law which was then in force had been repealed, and in its stead the act which took effect May 6, 1853, had been enacted, which gave to married women an estate in feesimple in one-third of the real estate then owned by their husbands.

Scott, having acquired a vested interest in the land prior to the enactment of the law of 1853, was not affected by it, as the rule is settled by an unbroken line of decisions that the interest of a purchaser acquired prior to the taking effect of the act was in no wise diminished or impaired by the act. Strong v. Clem, 12 Ind. 37; Frantz v. Harrow, 13 Ind. 507; Hoskins v. Hutchings, 37 Ind. 324; Bowen v. Preston, 48 Ind. 367; Wiseman v. Beck with, 90 Ind. 185, and cases cited. These cases recognize the principle that the wife's inchoate right of dower in the real estate of her husband was subject to legislative control, but that the existing vested rights of third persons in the lands of the husband, whether acquired by deed or mortgage in which the wife did not join, by sheriff's sale, adverse possession, or by an executory contract, were not subject to diminution or impairment by a law which enlarged the rights of a wife in the real estate of her husband.

The subsequent marriage of the owner of the land did not revoke or affect the power of attorney previously executed, so far as to take away the power of the agent to make a valid executory contract for the sale of the land. We find no error in the record. The judgment is affirmed.

(122 Ind. 450)

VANSICKLE V. FERGUSON. (Supreme Court of Indiana. March 12, 1890.) MASTER AND SERVANT-WAGES-PAYMENT.

One rendering services under a contract providing for fixed wages, and that a part of the wages shall be applied to a claim against his father, can recover the full amount, in the absence of an agreement as to the amount to be so applied.

Appeal from superior court, Marion county; L. C. WALKER, Judge.

Action by Robert M. Ferguson against George W. Vansickle to recover for services rendered. Judgment was for plaintiff, and defendant appeals.

Geo. W. Spahr, for appellant. Hez. Dailey, for appellee.

ELLIOTT, J. The appellee was employed by the appellant at a stipulated compensation, and under the employment he rendered services to the appellant. In the contract under which the services were rendered, it was agreed that part of the wages of the appellee should be applied to the payment of a claim against the appellee's father, but there was no agreement as to how much should be so applied. The dispute between the parties is as to the amount which should be applied to the payment of that claim.

It is the law that where one renders services at the request of another the implication is that payment shall be made in money. It requires no express agreement to pay in money to entitle the claimant to money; for payment cannot be made in any thing else except money, unless it is so agreed between the contracting parties. Hancock v. Yaden, ante, 253, (this term.) It was therefore incumbent upon the appellant to make good his claim that he had a right to pay the wages of the appellee by crediting the amount on the claim against the latter's father. This he did not do, because the evidence does not show the amount that was to be credited on the claim; and it was therefore the right of the appellee to elect how much, if anything, should be so credited. It is, perhaps, unfortunate that a contract so vague and indefinite was made; but that evil the courts cannot remedy. For they must leave the parties to make their own contracts. All that the courts can do is to apply the law to the contract as it is made by the parties; and in this instance the result is that the plaintiff is entitled to payment in money, for the law declares that payment shall be made in money, unless there is an enforceable contract providing for payment in something of value other than money. Either this conclusion must result, or the courts must arbitrarily declare, and that, too, without the slightest rule or guide, that a designated amount shall be paid on the claim against the appellee's father. The appellant certainly cannot make the apportionment, for there is nothing in the contract authorizing him to do so. The courts cannot make it, because neither measure nor standard is published by the agreement. The appellant cannot have the benefit of the appellee's services without compensation, because he neglected to provide how › much should be paid otherwise than in

money; and, if the appellee is entitled to compensation, he is entitled to it as the law provides. There is here no enforceable stipulation concerning the medium of payment, and it must result that the compensation shall be paid in money, since, as we have seen, payment must be made in money where there is no agreement to the contrary. A non-enforceable stipulation is the same thing, practically, as no stipulation at all; and the law enters and determines the mode of payment, where there is nothing more than a stipulation regarding payment which is utterly incapable of enforcement. Judgment affirmed.

(123 Ind. 24)

MOWBRAY V. ANTRIN. (Supreme Court of Indiana. March 19, 1890.) CORPORATIONS-LIABILITY OF OFFICERS.

The officer of a private corporation is not responsible for corporate funds and papers intrusted to his care, and lost by him without negligence on his part.

Appeal from circuit court, Miami county; J. D. CONNER, Judge.

Harvey J. Shirk, John Mitchell, Lyman Walker, and Wm. E. Mowbray, for appellant. N. N. Antrim, Chas. A. Cole, and Wm. B. McClintic, for appellee.

COFFEY, J. This was a suit by the appellee, as receiver of the Working Men's Saving, Loan & Building Association of Peru, Ind., against the appellant, on his bond as secretary of said association, The condition of said bond is as follows: "Now, if the said William E. Mowbray shall well and truly perform the duties of said office of secretary, as prescribed by the constitution and by-laws of said association, then this obligation shall be void; otherwise to be and remain in full force and effect." At the date of the execution of the bond in suit the constitution of the association provided that the secretary should keep correct minutes of the proceedings of the association, and of the board of directors; that he should keep accurate accounts with all stockholders, and attest all orders signed by the president, legally drawn on the treasurer; that he should receive all dues for stock and other payments from the members, and pay the same to the treasurer, taking his receipt therefor; that he should have charge of the seal, and all the books and papers of the association,-all of which he should deliver to his successor in office. The complaint alleges that the appellant was duly elected secretary of said association on the 15th day of January, 1880, and duly qualified to serve as such during the year 1880; that on the 24th day of January, 1881, he was duly elected as his own successor, and duly qualified; that during the year 1880 he had in his care, custody, and control a certain promissory note belonging to and the property of said association, dated September 25, 1879, due on or before September 25, 1880, payable to the order of the Working Men's Saving, Loan & Building Association of Peru, Ind., for $200, with interest from date at the rate of 8 per cent. per annum, without relief from valuation or appraisement laws, with five per

# * 營

cent. attorney's fees, signed by Eliza J. Frissal and Noah W. Frissal, and secured by mortgage on the following real estate, in Miami county, Ind., to-wit, lots Nos. 55 and 56; in Smith's second addition to Peru, Ind.. which note is of the value of $315.40; that he wrongfully neglected, failed, and refused to pay to the treasurer of said association the money due on said note, or to deliver to his successor in office said note; that he failed and refused, and still fails and refuses, to deliver to the plaintiff said note, or the money due thereon, although the plaintiff has specially requested him so to do before the commencement of this suit, whereby the plaintiff has been damaged in the sum of $315.40. The appellant answered this complaint in nine paragraphs. The court sustained a deinurrer to the fourth, fifth, sixth, seventh, and ninth paragraphs of the said answer, and this ruling is assigned as error in this court. The fourth paragraph of the answer admits the possession of the note mentioned in the complaint, and the right of the plaintiff to recover nominal damages; and, in avoidance of all claims for damages except such as are merely nominal, alleges that in the year 1880, while he held the possession of said note, said association furnished no place for the safekeeping of its securities; that appellant occupied a room jointly with one Dukes, who was the president of said association, and was and still is a man of large financial means; that with the consent of said Dukes he left said note in the fire-proof safe of the said Dukes, with the other securities of said asociation; that at the request of the said Dukes, who was the president of said association, and upon his representation that the makers of said note desired to pay the same, at a time when the appellant, by previous arrangement, would be absent from his office, he delivered said note to the said Dukes to receive the money due thereon; that he has never had said note in his possession since he so delivered the same to said Dukes; that the makers of said note now have the possession of the same, but the said Dukes denies that they paid the same to him; that the association brought suit on said note against the makers thereof in the Miami circuit court, after the same was so delivered to the said Dukes, but was defeated in said suit; that no part of said note was ever paid to the appellant. The fifth paragraph of the answer admits that the appellant had the possession of the note mentioned in the complaint. as therein alleged, but avers that the same was lost without any fault or negligence on his part; that after the loss of the same, in a suit by the said association against the makers thereof, as upon a lost note, it was defeated; that the makers of said note never paid the same, or any part thereof. The sixth paragraph is the same as the fourth, except that it omits the averments that the appellee delivered the same to Dukes, and the defeat of the association in a suit on the note, and avers that the same was taken from the safe without his knowledge or 'consent, and avers that the same has never been paid. The seventh avers that the appellant received no money on the note

mentioned in the complaint, and that the same was lost while in his possession as secretary of said association, without any fault or negligence on his part. The ninth paragraph is substantially the same as the seventh.

The appellant contends that this case falls within the rule announced in the cases of Norwood v. Harness, 98 Ind. 134; State v. Greensdale, 106 Ind. 364, 6 N. E. Rep. 926; Slauter v. Favorite, 107 Ind. 291, 4 N. E. Rep. 880; and Naltner v. Dolan, 108 Ind. 500, 8 N. E. Rep. 289; and that he is liable only for the want of such care as is required of an ordinary trustee or bailee for hire. On the other hand, it is contended by the appellee that the case falls within the rule announced in the cases of Halbert v. State, 22 Ind. 125, and Inglis v. State, 61 Ind. 212, and that the appellant is an insurer of the property and money coming into his hands as such secretary. It is said, in some of the cases of the class to which the two last cited belong, that, when a public officer receives funds, the money belongs to him, and that he becomes a debtor to the fund received; and for that reason it is no defense, when called upon to account, to say that the money has been lost, stolen, or destroyed. The rule is based upon public policy, and, when applied to public officers, is a salutary one. But the reason for the rule does not exist as to officers of a private corporatin. They are in no sense the owners of the money which comes into their hands, and have no right to use it, except in the business of the corporation. If the rule was applicable to private corporations, then the officers of a banking institution would be individually liable to the bank for the funds stolen from the bank, though such theft occurred without their fault or negligence. We are of the opinion that the liability of the appellant is that of an ordinary trustee or bailee for hire, and that it is governed by the rule announced in the cases first above cited. It follows that the circuit court erred in sustaining the demurrers to the fourth, sixth, seventh, and ninth paragrahs of the answer. The seventh and ninth paragraphs are general in their terms, but, in the absence of a motion to make them more specific, they are sufficient. Duffy v. Howard, 77 Ind. 182; Boyce v. Fitzpatrick, 80 Ind. 526; Jones v. White, 90 Ind. 255; Railway Co. v. Walker, 113 Ind. 196, 15 N. E. Rep. 234.

Nor can we say that the evidence which the appellant might have introduced under these paragraphs could be given in evidence under the eighth paragraph of the answer, as contended by the appellee. The proof under the eighth paragraph would be limited to the specific facts therein averred, while under the seventh and ninth it might have taken a much broader range.

It is also complained in this court that the circuit court erred in overruling a demurrer to the third paragraph of the reply to the eighth paragraph of the answer. We think this complaint is well founded. The eighth paragraph of the answer avers that the note mentioned in the complaint was lost while the same was under the control of the appellant, as sec

retary of said association, without any fault or negligence on his part, under the circumstances following: That said association did not designate or provide for appellant, as its secretary, any means for securely keeping the papers left in his possession or custody as such secretary, but appellant, by permission of one Aaron N. Dukes, made use of a suitable safe belonging to said Dukes, and kept in the office jointly occupied by said Dukes and the appellant; that the note in controversy was kept in said safe, to which only said Dukes and the appellant had access; that said Dukes was and is a careful, prudent business man, and then was and still is financially solvent and responsible; that there was a series of notes executed by Frissal and Frissal, as stated in the complaint, three in number, so left in said safe, one of which was the note in controversy; that one of said notes was due and payable about the 15th day of April, 1880, and the others did not mature until after that date; that having received notice from said Frissal that he would about that time pay the note then due, and being at that time necessarily about to be absent from his office and away from said county in which said office was situated, he authorized said Dukes to receive payment of the note then due; that said Dukes did receive said money on the note then due, and paid the same to the appellant, who has fully accounted for and paid the same to the treasurer of said association; that thereafter, about the time of the maturity of the note in controversy, the appellant discovered that said note was missing from said safe; that he did not at any time subsequent to said collection, to-wit, on the 15th day of April, 1880, remove said note from said safe, or collect the same, or any part thereof, or in any way assent to its collection or removal. To this answer the third paragraph of the reply alleges that the appellant, while acting as secretary of the association, to-wit, on the day of April, 1880, delivered said note to said Dukes for safe-keeping and for collection, as the agent of the appellant; that while the same was so in the possession of said Dukes, as such agent, to-wit, on the day of April, 1880, the payee thereof, Noah N. Frissal, paid the same in full to said Dukes, as the agent of the appellant, and that said Dukes thereupon surrendered said note to the said Frissal. This reply proceeds upon the theory that the appellant is liable for the note in controversy, without regard to any question of negligence. A rule that would render him liable, under the circumstances disclosed by this answer and the reply thereto, would render personally liable the officers of a bank, an administrator and guardians, where they intrust claims for collection to agents or attorneys, however careful they might be in the selection of such agents or attorneys. As we have seen, the rule which holds a public officer as an insurer of the funds in his hands does not apply to officers of a private corporation like the one before us. We think the court erred in overruling the demurrer to this reply. Judgment reversed, with directions to overrule the demurrer to the fourth, sixth, seventh, and

ninth paragraph of the answer, and to sustain the demurrer to the third paragraph of the reply.

(124 Ind. 41)

DAVIS V. FOGLE et al.1 (Supreme Court of Indiana. March 11, 1890.) WILLS-REVOCATION-ADOPTION OF CHILD.

Under Rev. St. Ind. 1881, §§ 2559, 2560, providing that no will, except as in that act provided, shall be revoked unless destroyed or mutilated, etc., and that a will shall be deemed revoked if, after making it, "the testator shall have born to him legitimate issue who shall survive him, or shall have posthumous issue, " for whom no provision is made, a will is not revoked by the adoption of a child, though such child is entitled to receive "all the rights and interests in the estate" of the adopting parent, "by descent or otherwise, that such child would if the natural heir" of such parent.

Appeal from circuit court, Noble county; JOSEPH W. ADAIR, Judge.

Thos. M. Eells, for appellant. P. V. Hoffman, H. G. Zimmerman, and Frank M. Prickett, for appellees.

OLDS, J. This is an action to quiet ti tle to real estate. William C. Davis who died on the 11th day of April, 1889, was at the time of his death the owner in fee of the real estate described in the complaint. The appellant, Esther S. Davis, was the third and childless wife of the deceased. The deceased had no children by his first wife. The appellee Mina A. Fogle was his child by the second wife. In 1888, said William C. Davis adopted Eli C. Davis as his child and heir. After the marriage of said William C. Davis to his third wife, Esther S. Davis, and before the adoption of Eli C. Davis, he made a will devising the real estate in controversy to his wife Esther S. Davis, in fee. The appellee Mina A. Fogle brought this suit, making Esther S. and Eli C. Davis defendants, alleging the facts, and contends that the adoption of Eli C. Davis by her father revoked the will, and that she and Eli C. each inherited a one-half interest in the real estate, subject to a life-estate in favor of Esther S. Davis, the third and childless wife of the deceased. The appellant, Esther S. Davis, demurred to the complaint for want of facts, which demurrer was overruled, and she excepted.

The question presented for decision is, does the adoption of a child, under the statute of this state, operate to revoke an antecedent will of the adopting father; he having made no provision in the will, or otherwise, for such adopted child? This question must be determined mainly by the construction to be given to our stat. utes.

Counsel for appellee, in their able brief in this case, contend that the "statute declaring and defining the rights and interests of adopted heirs in the estate of their father contains no limiting or qualifying words, nor are the rights and interests of the adopted heir restricted to the rights and interests of a natural heir in any particular case or class of circumstances, nor to natural heirs born prior to the date of the will of their father, whereby no provision has been made for them. But the wording is that the adopted child shall be entitled 1 Rehearing denied,