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Goodwine et al. v. The State, ex rel. Fleming.

his money, and its receipt from the purchaser of his stock was not embraced by the condition of the bond, because that condition only embraced money received by him, belonging to the township in some sense; that is, money received by him. from the public funds."

The fallacy of the argument is manifest. The condition of the trustee's bond required him to receive, account for or pay over to his successor "all moneys belonging to the township." This was broad enough to include all moneys due the township from his predecessor in office, and the fact that he was his own predecessor does not alter the proposition.

The facts found by the court show that Thomas became a defaulter in his prior term of office-not because he invested money received from public sources in his private business, for that he had a right to do, so long as he kept himself ready to pay out according to law all sums required for public uses. Linville v. Leininger, 72 Ind. 491, and cases cited; Bocard v. The State, ex rel., 79 Ind. 270; Brown v.. The State, ex rel., 78 Ind. 239. But because, at the end of his term, he did not have in his hands to turn over, and did not turn over, to his successor (himself), the amount for which he was then accountable. And had he never made good this defalcation, his prior bondsmen, and not the appellants, would have been responsible therefor. He did, however, make it good, as the facts show. By the sale of his property, he obtained money and replaced that for which he was in default, and, when he did this, the appellants became liable therefor, as much as if another had been his predecessor in the office, and that other had been in like default and had afterwards made it good by payment to Thomas of the amount due.

The finding, however, goes further than this. It shows that, besides repaying to himself as trustee the amount of his prior defalcation, Thomas applied the identical money used in making the repayment to the uses of his trust during the term covered by the bond in suit, from which it necessarily results that, of the public funds received upon warrants during

Williams v. Williams et al.

that term, he did not make full account; and, for the defi-
ciency, the court gave judgment against the appellants, as it
was eminently just and lawful to do.
Judgment affirmed, with costs.

No. 8913.

WILLIAMS v. WILLIAMS ET AL.

COSTS.-Taxation.--Judgment Conclusive.--Supreme Court.--The Supreme Court will not look into the merits of a cause to determine whether costs are properly taxed, but will regard the verdict and judgment as conclusive upon such question against the unsuccessful party.

SAME.

Decedent's Insolvent Estate.- Claimant's Action on Administrator's Bond. -A claimant against a decedent's insolvent estate, having received a part of her claim, and failing, in an action on the administrator's bond, to recover more, may not complain of the overruling of her motion to tax against her adversaries the costs from the commencement of the action until the last payment to her.

From the Huntington Circuit Court.

L. P. Milligan, J. C. Branyan, C. W. Watkins and M. L. Spencer, for appellant.

B. M. Cobb, for appellees.

ELLIOTT, C. J.-A claim for seven hundred and fifty dollars was allowed against the estate of John G. Williams, deceased, represented by the appellee Minerva Williams, in October, 1878, and during the year 1874 the administratrix paid on the claim $244.87. On the 22d day of May, 1878, this action was commenced by the appellant on the bond of the administratrix. A trial was had and verdict returned in appellant's favor on the 17th day of June, 1879. On the motion of the appellees, a new trial was granted. The second trial resulted in a verdict in their favor. The appellant moved to VOL. 81.-8

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Williams v. Williams et al.

tax the appellees with all costs which had accrued from the time of the filing of the complaint until the payment of the sum of $338.84, which was some time in September, 1879.

On the 14th day of October following, the appellees filed an answer, alleging the payment of $338.84, that the estate. was insolvent, had been so declared by the court, and that the sum paid was all the appellant was entitled to receive.

We think the court did right in overruling appellant's motion. If she had accepted the sum paid as a full satisfaction of her claim, it would have been otherwise; but she chose to demand more, and to compel a trial, and she must accept the result which attends an unsuccessful suitor. Not having recovered an amount sufficient to carry costs, she can not have them taxed against her adversaries.

The case of The Jeffersonville R. R. Co. v. Weinman, 39 Ind. 231, is not in point. In that case the amount paid by the defendant was accepted in full satisfaction of the claim, and the action dismissed. A full explanation of the case appears in the case of The Jeffersonville R. R. Co. v. Kalen, 39 Ind. 233, and note.

The appellant did not treat the payment as in full, and was not, of course, precluded from endeavoring to collect the remainder claimed by her in excess of the payment. As she chose to treat the payment as a partial one, and attempted to enforce a claim to a much larger sum, she is not in a situation to demand costs.

We can not look into the merits of a cause to determine whether costs are properly taxed. The verdict and judgment are, upon such a question, conclusive against the unsuccessful party. We can not, in the present case, examine the evidence to ascertain whether the appellees ought or ought not to have recovered judgment. The judgment determines that the appellant was not entitled to any recovery, and we can not, upon a motion such as that filed, look beyond the judgment of the trial court.

Judgment affirmed.

Short v. Stutsman et al.

No. 8573.

SHORT v. STUTSMAN ET AL.

PRACTICE.-Reserved Question of Law.-Appeal to Supreme Court.-Statute Construed.-A reserved question of law can not be presented under section 630, R. S. 1881, unless it appears that the particular question virtually arose, and was decided by the trial court, during the progress of the cause.

SAME.-Exception.—Instruction.-Record.-A party can not formulate such question of law as he conceives to be involved in the pleading or to arise upon the facts proved, and present it to the Supreme Court under said section 630; and where such question arises upon an instruction, the record must contain the instruction, and it must appear that an exception was taken to the ruling of the court.

From the Elkhart Circuit Court.

L. Warner, J. M. Vanfleet and E. C. Bickel, for appellant.
J. H. Baker and J. A. S. Mitchell, for appellees.

BEST, C.-The questions sought to be presented by this record are brought upon bill of exceptions only, under section 347 of the code.

The bill of exceptions recites, "That at the proper time the plaintiff notified the court that it desired to take the following questions of law to the Supreme Court, under section 347 of the code, to wit:

"1st. Did the fact that Longley procured Miller to sign said bond on Sunday, delivering the same to the plaintiff on a secular day, without notice that it was signed on Sunday, give Miller a valid defence to the bond?

"2d. Was or was not the defendant Miller bound by his agreement to pay said debt, made after a breach of the condition. of said bond?

"3d. Was there any issue under which the defendants could prove that the corporation plaintiff was not the real party in interest, or that said Alfred Short owned said claim individually?

"Whereupon the court, on motion of the plaintiff, in order

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Short v. Stutsman et al.

to enable the Supreme Court to apprehend and properly determine the above points, ordered that the following matter be made part of the record, to wit:

"1st. The complaint and exhibit.

"2d. The 4th, 6th and 7th paragraphs of the answer. "3d. The 1st and 4th paragraphs of reply.

"4th. The verdict of the jury.

"5th. Subdivisions A, B, C, D and P of third cause assigned in the motion for a new trial.

"6th. The signatures to and endorsements upon each of said papers, and the order book entries showing the filing of the same in court; the entry showing the time given to file this bill of exceptions; the final judgment of the court, and no other entries or papers whatever. The court also states that the evidence tended to show that said Longley procured said Miller to sign said bond on Sunday, and that said Miller delivered said bond to Longley on Sunday, and that Longley delivered said bond to the plaintiff on a secular day, without any notice that said Miller had signed it on Sunday; and the evidence tended to show that said organ No. 486 was shipped to said Longley after the delivery of said bond to the plaintiff, and sold and the proceeds thereof received by said Longley before the plaintiff knew that said bond was signed by said Miller on Sunday. And the court instructed the jury that if said Miller signed said bond on Sunday, their verdict must be for the defendant Miller, unless he afterward ratified it in such way as to bind him, to which ruling of the court the plaintiff, at the proper time, by counsel, excepted.

"The court further states that the evidence tended to show that the plaintiff's agent, Mr. Warner, before the commencement of this suit, and while he held the obligation sued upon as an attorney for collection, presented the notes mentioned in the complaint to the defendant Miller, and that said Miller then promised to pay his half of the same, and that the court instructed the jury that if this evidence was found to be true, and also that said Miller signed said bond on Sunday, he could

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