Boesker et al. v. Pickett.

of the good faith of the party, and of the validity of his claim to the property, but we do not regard it as concluding him from afterwards presenting correct schedules. The debtor should not be held conclusively estopped, but the fact should be deemed of sufficient materiality to cast upon him the burden of satisfactorily explaining his acts. Whether the explanation is or is not a reasonable one, is a question of fact to be determined by the court or jury by whom the case is tried.

It appears from the evidence that on the 28th day of January, 1880, appellee sold the property in controversy; that sometime afterwards, and before the delivery of the last schedules, the sale was rescinded. It is asserted by the appellants that the appellee can not claim the property as exempt. We are unable to perceive any reason upon which this position can rest. The appellee was entitled to the exemption provided by the statute, and this right was not defeated by the fact that he had once sold the property, and afterwards regained it by a rescission of the sale. If the property was actually owned by him, and was within the amount allowed by law, he was entitled to claim it as exempt, although he had once sold it, and had a second time become its owner, by rescinding the contract of sale.

It is argued that the sale was a fraudulent one, made for the purpose of cheating creditors, and that, therefore, the appellee has lost his right to exempt the property. The court, however, found that the sale was not a fraudulent one, and that the contract had been rescinded. Fraud is purely a question of fact, and we can not disturb the finding upon it, unless the finding is clearly contrary to the evidence. Holman v. Martin, 12 Ind. 553. We can not, in the present case, interfere with the finding of the court, for there is evidence fully supporting it.

Judgment affirmed.

State, ex rel. Morley, v. Gallagher et al.

71

No. 7998.

STATE, EX REL. MORLEY, v. Gallagher et al.

CONTESTED ELECTION.-Quo Warranto.—Jurisdiction.—The right to an office may be contested and tried upon information filed in the circuit court, under sections 749 and 750, 2 R. S. 1876, pp. 298 and 299, notwithstanding the special statutory provisions for the contest of elections.

From the Tippecanoe Circuit Court.

W. C. Wilson and J. H. Adams, for appellant.

WOODS, J.-Information by the relator, against the appellees Gallagher and Mueller, under article 44 of the code, to try the right to the office of trustee of Fairfield township, Tippecanoe county, Indiana.

The circuit court sustained separate demurrers by the defendants for want of facts to the complaint, and, the appellant not amending, gave judgment for the defendants. This was done in February, 1879.

We have no brief from the appellee, but are informed by counsel for the appellant, that the court below acted upon the view, "that inasmuch as the relator had failed to proceed under the law providing for the contest of elections, and within the time therein provided, he had lost his right of action, and could not proceed under the 44th article."

On this proposition, this court has held otherwise in the case of The State, ex rel., v. Adams, 65 Ind. 393, and as there is no other ground upon which it has been suggested, or in respect to which it has occurred to us, that the complaint is defective, we are constrained to hold it good.

It shows among other things, that next to Gallagher, who was ineligible on account of having held the office for four years next preceding the election (Jeffries v. Rowe, 63 Ind. 592), the relator, who was eligible, received the highest number of votes; that the auditor had undertaken to appoint the appellee Mueller to the office; that Gallagher had qualified, and was in possession, and had refused to surrender to the relator,

The State v. Tumey.

and that the plaintiff had tendered to the auditor a proper bond, duly executed by himself and sureties, and had offered to take the oath of office, which had been refused.

Judgment reversed, with costs, and with instructions to overrule the demurrers to the complaint.

No. 10,053.

THE STATE v. TUMEY.

CRIMINAL LAW.-Reserved Question of Law.-Appeal Sustained.-No Reversal of Judgment.-Costs.-During the prosecution of a criminal cause, the prosecuting attorney may, by bill of exceptions, under section 1846, R. S. 1881, reserve any point of law for the decision of the Supreme Court. And, if the defendant be acquitted, the prosecuting attorney may, within one year, take the reserved case to the Supreme Court, upon appeal; there shall be no reversal of the judgment, on such appeal, but the opinion of the Supreme Court shall be the uniform rule of decision in inferior courts, and if the decision below is held to be erroneous, the appellee must pay the costs of appeal. SAME.--Foreign Insurance Company.--Certificate of Auditor of State.--Duty of Agent.-Under section 3765, R. S. 1881, a foreign insurance company is not required to file, in the county clerk's office, a certificate of the auditor of State showing that it is authorized to do business in the county; but it is made the duty of any agent of any such company, who assumes to act as such agent in the transaction of insurance business in any county, to procure and file in the office of the clerk of the circuit court of the county a certificate from the auditor of State, showing that he is authorized to act as such agent in the transaction of insurance business, for such company, in such county.

SAME.-Embezzlement by Agent.--Illegal Consideration or Premiums.--Defence.

-Where an agent of a foreign insurance company is prosecuted for the embezzlement of the moneys of the company received by him, in the course of his agency, as embezzlement is defined in section 1944, R. S. 1881, it is no defence that such agent had not complied with the requirements of section 3765, R. S. 1881, in regard to his agency, and had therefore received such moneys for the company, upon an illegal consideration and in the transaction of an unlawful business.

From the Huntington Circuit Court.

The State v. Tumey.

C. W. Watkins, Prosecuting Attorney, for the State. Howk, J.-In this case, an indictment was returned into the court below, on the 10th day of January, 1882, which charged in substance, that the appellee, on the 1st day of November, 1881, at Huntington county, Indiana, " did then and there unlawfully and feloniously, being then and there the agent of a certain association, called the Ohio Mutual Aid and Life Association, of Bellefontaine, Ohio, and having access to and control over and the possession of fifteen dollars, to the possession of which his employers, the said Ohio Mutual Aid and Life Association, were then and there entitled, and, while in and during such employment, did then and there take, purloin, secrete and appropriate to his own use, without then and there having the consent of his employers, the said association, the said sum of fifteen dollars, the same being money of the value of fifteen dollars, of the personal goods and chattels of the said Ohio Mutual Aid and Life Association, of the lawful current money of the United States of America, and said money being paid and delivered to the said Ami Tumey, by Jacob G. Hoffman, for said association, contrary to the form of the statute," etc.

Upon arraignment and plea of not guilty, the appellee was tried by a jury and acquitted of the offence charged against him in the indictment, and judgment was rendered accordingly.

The prosecuting attorney, on the trial of the cause, excepted to an opinion or ruling of the court, and has reserved the point of law for the decision of this court. The bill of exceptions shows, that after the State had introduced its evidence and rested, the appellee, to maintain his defence, under his plea of not guilty, offered as a witness Willis A. Jones, who testified to his name, and that he was the clerk of the Huntington Circuit Court; that the appellee then propounded to the witness the following question, to wit:

"You may state to the jury, whether or not the Ohio Mutual Aid and Life Association, of Bellefontaine, Ohio, filed

The State v. Tumey.

in your office a certificate from the auditor of the State of Indiana, showing that they are authorized to do business in Huntington county?"

That to this question the State, by its prosecuting attorney, objected on the following grounds:

"1st. That the said association was not compelled to file such authority; and,

"2d. That, if said authority had not been filed by such company, it was a thing the defendant could not set up as a defence to an indictment for embezzlement of money that he had collected for such company."

And that such objection was by the court overruled, to which ruling the State, by its attorney, at the time excepted.

It is manifest that the appeal in this case was intended and attempted to be taken, under and pursuant to the provisions of section 271 of the criminal code of 1881, being section 1846 of R. S. 1881. This section reads as follows: "The prosecuting attorney may except to any opinion of the court during the prosecution of any cause, and reserve the point of law for the decision of the Supreme Court. The bill of exceptions must state clearly so much of the record and proceedings as may be necessary for a fair statement of the question reserved. In case of the acquittal of the defendant, the prosecuting attorney may take the reserved case to the Supreme Court upon an appeal at any time within one year. The Supreme Court is not authorized to reverse the judgment upon such appeal, but only to pronounce an opinion upon the correctness of the decision of the court below. The opinion of the Supreme Court shall be binding upon the inferior courts and shall be a uniform rule of decision therein. When the decision of the court below is decided to be erroneous, the appellee must pay the costs of the appeal."

The bill of exceptions, in the case now before us, does not state so clearly as it ought to and might have done, so much of the record and proceedings as was necessary for a fair stateVOL. 81.-36