Fry et al. v. State, ex rel. Wilson. and $125 in twenty-four months from the date of said judgment. A copy of the judgment and order of the court is filed with and made part of the complaint, and so treated by the parties. It is as follows: "Come the parties by counsel, and this cause is now compromised and settled as per the following agreement, to wit: State, ex rel. Wilson, v. Samuel Fry. "The parties hereto have this day compromised the above cause, upon the following terms, to wit: The defendant is to pay the relatrix in cash $100, and suffer a judgment to go against him for the sum of $225, payable as the court may direct, to be replevied by such surety as the court may accept, and each party, relatrix and defendant, to pay all costs made by each respectively. "In witness whereof the parties have hereunto set their hands and seals, this 28th day of March, 1879. "ELLEN WILSON. "SAMUEL FRY. "And said relatrix now appears and acknowledges in open court that satisfaction has been made to her for the support and maintenance of her illegitimate child by said defendant. "And the court now renders judgment against defendant for said sum of $225, as per said agreement. It is therefore considered by the court, that the plaintiff, relatrix herein, recover of defendant said sum of $225, and that the defendant pay all costs and charges by him made in this cause, which sum shall be paid in instalments, in case said judgment be replevied, as follows: $100 in twelve months, and $125 in twenty-four months from date. "It is therefore considered by the court that the relatrix pay all costs by her made in the prosecution of her complaint herein; and that the defendant replevy said judgment by good freehold surety." The failure of Samuel M. Fry, the principal obligor, to replevy the judgment for $225, as directed by the court, constitutes the breach of the bond complained of. Fry et al. v. State, ex rel. Wilson. The appellants demurred to the complaint. Afterwards, the counsel for the defendants below withdrew by leave of the court, their appearance for Samuel M. Fry, and then Luke Fry filed his separate demurrer to the complaint. The demurrer was overruled, and he answered the complaint in five paragraphs. A separate demurrer was filed to each paragraph of the answer, and sustained by the court. Proper exceptions were taken to the rulings of the court upon the demurrers. The appellant Luke Fry refusing to answer further, final judgment was rendered for the relatrix. The errors assigned involve the rulings of the court upon the demurrer to the complaint and the demurrers to the an swer. It appears from the complaint that the proceedings in bastardy were compromised and settled by the relatrix and the alleged father of her child. In accordance with the conditions of the bond sued on, Samuel M. Fry appeared at the March term of the Howard Circuit Court. The relatrix also appeared in open court and entered of record in due form her admission that satisfactory provision had been made for the support of her bastard child. The contract of compromise and support was entered upon the records of the court. provided that a judgment for $225 should be rendered against the father of the child, payable as the court might direct, to be replevied by such security as the court should accept, each party to pay his or her costs; $100 additional was to be paid in cash. It Upon and in pursuance of this agreement and compromise, as the cause of action, the court rendered judgment in accordance with its terms. Samuel M. Fry failed to put in bail as provided by this contract and directed by the judgment of the court. We think it quite clear that the judgment was no part of the bastardy proceedings proper; it was authorized by and founded upon the agreement of the parties; it provided for new and independent security; it was the consummation of an agreement Corey v. Corey. made by Samuel M. Fry, to be secured as provided by its terms, and not otherwise. Had no security been provided for, none could have been demanded. Upon the agreement and the judgment rendered upon it, the appellee had a right to require Samuel M. Fry to secure it as agreed, but she had no right to insist that Luke Fry was bound by the agreement or the judgment which followed it. It was not competent for Samuel M. Fry, by the disregard or violation of the agreement entered into between him and the relatrix for the support of their illegitimate child or otherwise, to create a breach of the bond sued on as against Luke Fry. The entry of the admission by the relatrix upon the record, that provision to her satisfaction had been made for the support of her child, ended the bastardy suit. It might as well be insisted, had Samuel M. Fry promised to marry the relatrix as a part of the inducement to enter satisfaction of record, that his refusal to do so would constitute a breach of the bond sued on, as that his failure to replevy the judgment in question constitutes such breach. Noble v. The State, ex rel. Hines, 39 Ind. 352 and 355. We think the court below erred in overruling the demurrer to the complaint. PER CURIAM.-It is ordered, upon the foregoing opinion, that the judgment below be reversed, at the costs of the relatrix, with instructions to sustain the demurrer to the complaint. No. 8753. COREY v. COREY. DIVORCE. Alimony. - Attorney's Fees. Antenuptial Contract.- Where at marriage the wife is 33 and the husband 77 years of age, and there was an antenuptial contract concerning property, containing a release of all share in the husband's estate upon his death, and it appeared that the Corey v. Corey. husband had made provision for the wife beyond the requirements of the contract, an allowance to the wife of $25 for attorney's fees, and a refusal to allow alimony, will not be disturbed by the Supreme Court. From the Madison Circuit Court. W. R. Pierse and C. B. Gerard, for appellant. FRANKLIN, C.-The court below decreed a divorce to appellant on a charge of cruel treatment by appellee. The day after the divorce was decreed appellant filed a motion to require appellee to pay her necessary expenses, in the sum of two hundred dollars, in the prosecution of the divorce. suit; the motion or petition was verified by appellant, and the affidavits of her two attorneys were filed in connection therewith, stating that she had agreed to pay them two hundred dollars as attorney fees, for prosecuting the divorce case. Upon which the court allowed her $25, and made an order that appellee pay the same. Appellant excepted, for the reason that the court did not. allow enough. On the third day after the divorce was decreed, appellant filed a motion asking the court to allow and adjudge to her alimony in the sum of $2,000, which motion was overruled by the court. The appellant then filed a motion for a new trial as to the alimony, which was also overruled and exceptions reserved. The following errors have been assigned in this court: 1st. Overruling motion for a new trial. 2d. Overruling motion for alimony. 3d. In only allowing $25 for expenses. At the time of the trial, April, 1880, appellant was thirtysix years old, and appellee eighty. They were married January, 1876, and separated December, 1879. At the time of the marriage, appellee had considerable property; appellant had There were no children by this marriage, but appellee had a family of children by a former marriage. none. 66 Corey v. Corey. Before this marriage the parties entered into an antenuptial contract, dated January 1st, 1876, and which reads as follows: Whereas we have heretofore entered into a contract to be united together in the holy bonds of matrimony as husband and wife, which contract is hereafter to be completed and solemnized: We now, before the final consummation and solemnization of said marriage contract, have entered into the following antenuptial contract and agreement, to wit: The said Abner Corey agrees and binds himself that as long as they shall both live after their marriage as intended, he will ever provide for and treat the said Catharine H. Ross, as a good and faithful husband should do, and that if he shall die first, then, at his death, said Catherine H. shall take as her portion of his goods the following real estate in Madison county and State of Indiana:" (then follows a lengthy description of a lot in Anderson); "also she shall have as her own, without appraisement, all the household and kitchen goods and furniture owned by said Corey at the death of said Corey; also there shall be paid to her of any property, seven hundred dollars ($700) in money at my death or in six months thereafter, to be her own forever. And in consideration of the above and foregoing, the above named Catharine H. Ross agrees and binds herself that after their marriage as agreed and anticipated, that she will dwell with, care for, and cherish and love and respect the said Abner Corey as a faithful and dutiful wife should, so long as they shall both live. And if the said Abner Corey die first, she hereby agrees and binds herself, that she will receive and accept the above described house and lot during her lifetime, and the household and kitchen goods and furniture, and the seven hundred dollars ($700) in money, as above named, in full of all her interest, right, title and claim in and to all the property, both real and personal of said Corey at the time of his death, and that the same shall be in full of all her rights and claims to and in the property of said Corey, as his widow, and that at his death she will release and turn over to the other heirs, |