judicial declaration of the vacancy, and appoint or elect, according to the forms of law, a person to fill such office; but if, when such person attempts to take possession of the office, he is resisted by the previous incumbent, he will be compelled to try the right, and oust such incumbent, or fail to oust him, in some mode prescribed by law; 2. If such elected or appointed person finds the office, in fact, vacant, and can take possession, uncontested by the former incumbent, he may do so, and so long as he remains in such possession, he will be an officer de facto; and should the former incumbent never appear to contest his right, he will be regarded as having been an officer de facto and de jure; but should such former incumbent appear, after possession has been taken against him, the burden of proceeding to oust the then actual incumbent will fall upon him; and if in such proceeding it is made to appear that facts had occurred before the appointment or election justifying a judicial declaration of a vacancy, it will be then declared to have existed, and the election or appointment will be held to have been valid: See State v. Trustees of Vincennes University, 5 Ind. 91, in addition to authorities cited.

The judgment is reversed, with costs. Cause remanded for further proceedings.

NOTICE OF ELECTION, WHETHER NECESSARY: See People ex rel. McKune v. Weller, 70 Am. Dec. 754. The principal case is cited in City of Lafayette v. State, 69 Ind. 228, to the point that if an election is otherwise regular, the want of any notice thereof, previously given, will not invalidate it.

OFFICE WILL BECOME VACANT, under the laws of Indiana, if the incum bent accepts another incompatible office: Kerr v. Jones, 19 Ind. 350; or by removal from the county or state: Yonkey v. State, 27 Id. 241; Kraut v. State, 47 Id. 525. The principal case is an authority for the foregoing.

THE PRINCIPAL CASE IS REFERRED TO in State ex rel. Cornwell v. Allen, 21 Ind. 521, on the point that an election to an office is valid, if a vacancy exists, proper to be filled by election, at the date of election; in Leech v. State, 78 Id. 573, on the point whether, when an office is filled by an officer de facto having color of right and the insignia of title, the office can be said to have been vacant, so as to authorize the election of another in the absence of any proper proceeding to have the supposed vacancy adjudged; and in Mowbray v. State, 88 Id. 329, on the point that where a city council declares the office of treasurer vacant, and appoints one to fill the vacancy, the treasurer acquiescing, the appointee becomes treasurer de facto. It is cited in Leach v. Cassidy, 23 Id. 450, to the point that when it is made apparent to the court that a person is in possession of the office of school trustee, it can properly compel the auditor to recognize him as trustee, by drawing a warrant in him favor for school funds, but having done that, its duty in that case ended; in Commissioners of Boone Co. v. State, 61 Id. 387, to the point that a commission to an officer, issued by the governor, is at most merely prima facie evidence

of the facts recited in it, and is not conclusive; in Gregory v. State, 94 Id. 389, to the point that the clerk of the circuit court cannot be vested with Judicial functions; and in Baker v. Wambaugh, 99 Id. 316, the summary made by Perkins, J., is quoted with approval.

JONES v. Dorr.

[19 INDIANA, 884.]

MAKER OF NOTE IS NOT ESTOPPED BY HIS REPRESENTATIONS made to the holder, after he has become the owner thereof, to the effect that the note is all right, and would be paid; nor is the maker bound by such representations, when repeated by the holder to one to whom he sold the note.

ACTION to foreclose a mortgage. The facts are stated in the opinion.

Bradley and Woodward, for the appellants.

M. K. Farrand, for the appellee.

By Court, DAVISON, J. The appellee, who was the plaintiff, brought an action against Balinda Jones to foreclose a mortgage on the west half of the northwest quarter of section 16, in township 35 north, of range 6 east, in Porter County. The mortgage bears date April 15, 1856, and was executed by the defendant to one Thomas Englin, to secure the payment of a note for two hundred dollars. It is averred in the complaint that Englin, by indorsement, assigned the note and mortgage to one Absalom Leonard, who indorsed them to the plaintiff. The defendant answered: 1. By a denial; 2. That the note, the payment of which is secured by the mortgage, was given for a part of the purchase-money of the above-described real estate, which at the time it was given was sold, and by deed in fee conveyed by Englin to the defendant; and that Englin, the grantor, in and by said deed, covenanted that he was lawfully seised of the premises; that he had good right to convey; that they were unencumbered; and that he would warrant and defend the title to the same against all claims, etc. Of these covenants six breaches were alleged. The third and fourth were withdrawn before the cause was submitted for trial. The first, second, fifth, and sixth are as follows: 1. That the grantor was not lawfully seised, etc., and had not good right to sell and convey, etc.; 2. That he had no title to the land; 5. That the same, at the time of the conveyance, was owned by the

Fort Wayne and Chicago Railroad Company, and that company still owns it; 6. That when the conveyance was made, the land was encumbered by a deed for the right of way over and across the same, executed to the Fort Wayne and Chicago Railroad Company for the use of said company, and that after the defendant received said conveyance, the company entered upon and took possession of a part of the land, to wit, four acres, worth $150, and constructed thereon her railroad, and in the construction thereof has made large embankments and excavations of earth, to the damage of the land and of the defendant two hundred dollars, etc.

The plaintiff's reply to the answer consists of a general denial, and four special paragraphs. The defendant demurred to the second, third, fourth, and fifth paragraphs. To the second the demurrer was overruled, but sustained as to the others. The issues were submitted to the court, who found for the plaintiff, and having refused a new trial, rendered judgment,

etc.

The second reply, to which the demurrer was overruled, is as follows: "And the plaintiff says that before he purchased the note from Absalom Leonard, as stated in the complaint, the defendant represented to Leonard that said note was all right and just, and that she would pay it as soon as she could, and claimed no set-off or other defense to the same; that Leonard, when he sold the note to the plaintiff, informed him of the representations of the defendant respecting the note, and the plaintiff, believing said representations to be true, and relying upon them, purchased it of Leonard; wherefore," etc.

Was this reply sufficient to avoid the answer? If the representations and promises set up in the reply had been made to Leonard, when he was negotiating for the purchase of the note, and he had acted upon them, the defendant would have been estopped from setting up any defense to its validity, because, in that case, her admissions and representations would have constituted a valid estoppel. And the same would be true had they been made by her to the plaintiff, at the time he purchased. But these representations were made after Leonard had bought the note. He was not, in respect to his purchase, in any degree influenced by them, and the result is, they constituted no estoppel in his favor. If, then, the declarations were not an estoppel in Leonard's favor, no statement of his could make them an estoppel when pleaded by his assignee. The reason for this conclusion is obvious. The statements of

Leonard are his own statements, not the statements of the defendant, and the plaintiff was not, therefore, authorized to rely upon them. The demurrer should have been sustained. The judgment is reversed, with costs. Cause remanded.

MAKER OF NOTE IS NOT ESTOPPED BY HIS REPRESENTATIONS made to the holder after he has become the owner: Windle v. Canaday, 21 Ind. 248; Stutsman v. Thomas, 39 Id. 390; Reagan v. Hadley, 57 Id. 523; Crossan v. May, 68 Id. 244, all citing the principal case.

64

JOHNS v. STATE.

[19 INDIANA, 421.]

ACCESSARY BEFORE FACT, IN ONE STATE, TO CRIME COMMITTED IN AN. OTHER, CANNOT BE PUNISHED THEREFOR in the state where the crime was committed; although the laws of the latter state provide that every person, being without this state, committing or consummating an offense by an agent, or means within the state, is liable to be punished by the laws thereof, in the same manner as if he were present, and had commenced and consummated the offense within the state."

INDICTMENT for larceny. The opinion states the facts.

D. Kilgore, for the appellant.

Oscar B. Hord, attorney-general, Walter March, John F. Kibbey, and W. A. Peelle, for the state.

By Court, WORDEN, J. On the night of the 4th of February, 1862, the office of the treasurer of Jay County was broken open, and a large amount of money stolen therefrom. Johns, the appellant, together with three others, was indicted for the larceny. Upon trial, the appellant was convicted and sentenced to imprisonment in the penitentiary.

At the proper time, the appellant asked the following charge, which was applicable to the evidence, and was refused, viz.: "If the defendant did nothing more than, at a time previous to the commission of the crime charged in the indictment, to counsel with and encourage Barker and Blackburn, in the state of Ohio, to come to Indiana, and commit the larceny charged in the indictment, and was not himself in Indiana at the time the offense was committed, or nearer the place than the city of Dayton, state of Ohio, he should be acquitted on this indictment."

In determining whether the conviction can be sustained,

two questions arise: 1. Whether an accessary before the fact can be convicted on the indictment for the larceny, to which he was thus accessary; and 2. Whether he can be convicted where the acts done by him, making him such accessary, were committed without the limits of the state. If either of these questions shall be determined against the state, the judgment must be reversed.

From the view which we take of the second question, it will be unnecessary to pass upon the first, but a few observations may be made upon it, having some bearing, incidentally, upon the second. At common law, an accessary before the fact must have been charged as such, and not as principal; and he could not be convicted, except jointly with or after the principal, whose acquittal acquitted him: 1 Bishop's Crim. Law, secs. 467, 468. But our statutes have, for many purposes, abrogated all distinction between principal and accessary. Thus the forty-ninth section of the act concerning crime and punishment (2 R. S. 1852, p. 422) subjects persons aiding or abetting, etc., in the commission of crime (felonies), to the same punishment prescribed for principals; and the fiftyfirst section enacts that they may be indicted and convicted before or after the principal offender is indicted and convicted. The sixty-sixth section of the act regulating practice in criminal cases, provides that, "any person who counsels, aids, or abets in the commission of any offense may be charged, tried, and convicted in the same manner as if he were a principal." The terms of this section are clear and explicit, and if valid, would seem to authorize the conviction of an accessary before the fact on an indictment charging him with the principal offense.

But in the Bill of Rights (Const., art. 1, sec. 13) it is declared that, "in all criminal prosecutions the accused shall have the right. . . . to demand the nature and cause of the accusation against him, and to have a copy thereof." Whether, where the state seeks a conviction on the ground that the accused is an accessary before the fact, an indictment which charges him as principal, sufficiently apprises him of the "nature and cause of the accusation," is a question which we leave open, it being unnecessary to determine it. Where it shall become necessary to determine it, the court will undoubtedly have the benefit of a full discussion of the question, by counsel, on both sides.

We pass to the second question: Can a person who, out of