or mortgage. Hudson v. Evans, 81 Ind. 596; McCormick v. Hunter, 50 Ind. 186; Hancock v. Fleming, 85 Ind. 571, (576;) Dunn v. Tousey, 80 Ind. 288; Youst v. Hayes, supra.

By joining in the husband's deed of his real estate, and thus releasing her inchoate right simply, it cannot be said that the wife put herself in a position where the reasoning in the case of King v. Rea, supra, should be applied to her. She conveyed nothing, received nothing, and did nothing which should estop her from asserting an after-acquired title in her own name, and acquired by her own means, she at that time not being liable upon a covenant of warranty. In the case of Gonzales v. Hukil, 49 Ala. 260, it was held that the joint conveyance of land by the husband and wife as his property does not estop the wife from setting up a title subsequently acquired,—that she is not sui juris, except to relinquish her dower. In Blain v. Harrison, 11 Ill. 384, it was held, as stated in the syllabus, that a wife who joins her husband in a deed is not a party to the deed, except for the purpose of releasing her dower in the estate conveyed, and is not thereby estopped from setting up a subsequent title.

If the rule contended for by appellant should be applied to appellee, surely she ought not to be estopped, except as to the interest she had in the land conveyed. It would be inequitable to impose upon her an estoppel that would prevent her from acquiring and asserting an interest in the lands which she had not conveyed nor attempted to convey. That would be to make the wrongs of the husband work as an estoppel against the wife. He sold the land and received the pay for it, and hence it is easy to see why he should be estopped from asserting, against his grantee, an after-acquired title; but, clearly, the estoppel ought not to be broader than the grant.

As we have seen, a married woman was not liable upon covenants of warranty at the time the deed by appellee's husband and herself was executed to McClellan. A husband is liable upon the covenant of warranty where he joins the wife in a deed of her real estate, and he is thus liable as upon a contract that he is competent to make. If in such a a case his liability were to be measured by the doctrine of estoppel alone, we know of no reason why his liability should extend beyond the interest he had in the land conveyed. Appellee was not liable upon the covenant of warranty, nor was she estopped from acquiring and asserting title to the land under the facts of this case. The court below in so holding held correctly.

But one question remains. Appellant does not claim that he acquired any title through the tax sale and tax deed, but his contention is that he should have a lien upon the real estate for the amount of the taxes by him paid. We think otherwise. As between appellee and himself he was simply paying his own taxes. The legal title was in him, and he was in possession of the real estate. See, as somewhat analogous, the case of Cooper v. Jackson, 99 Ind. 566. Judgment affirmed, with costs.

(105 Ind. 420)

WILLIAMS V. THAMES LOAN & TRUST Co.

NEW TRIAL AS OF RIGHT.

Filed February 18, 1886.

Where it appears from an admission made of record that the action is to enforce a lien, it is error to grant a new trial as a matter of right; and where an order is made granting one in such a case, it is proper to set it aside and enforce the first judgment.

Appeal from Marion circuit court.

R. M. Logan, for appellant.

D. M. Bradbury, for appellee.

ELLIOTT, J. On the sixth day of February, 1867, the party through whom the appellant claims title bought the real estate in controversy at a tax sale made by the treasurer of the city of Indianapolis. A certificate of sale was issued by the treasurer, and on the sixteenth day of April, 1869, a deed was executed to the purchaser. This deed was never recorded. On the thirteenth day of August, 1875, the appellee loaned to the owner of the real estate a large sum of money, and took a mortgage to secure its payment. This mortgage was foreclosed in March, 1879. The real estate was sold to the appellee, upon the decree of foreclosure, on the twenty-sixth day of April of that year, and a deed executed to him by the sheriff on the twenty-eighth day of April, 1880. This tax sale conveyed no title because the tax-payer had personal property out of which the taxes could have been made. This action was instituted in November, 1881, and is in form, as indicated by the frame. of the complaint, an action of a dual nature, for the complaint seeks to quiet title, or, if this relief cannot be obtained, to enforce a lien for taxes. There is, however, an admission of record which affirmatively shows that there was no question of title or possession involved in the cause. There were two trials, both resulting in a finding against the appellant. The finding on the first trial was vacated by the granting of a new trial as a matter of right.

The court erred in granting the new trial as of right. Where it affirmatively and decisively appears that an action is to enforce a lien, a new trial as of right cannot be granted. Jenkins v. Corwin, 55 Ind. 21; Butler University v. Conard, 94 Ind. 353. Where a new trial as of right is erroneously granted, it is proper to remand the cause for judgment upon the first finding or verdict. Sharpe v. O'Brien, 39 Ind. 501; Gann v. Worman, 69 Ind. 459. This was the legal effect of the judgment of the general term of the superior court in the present instance, and there is therefore no cause for a reversal. Judgment affirmed.

v.5N.E.no.1-2

(105 Ind. 415)

BAYS v. CONNER and others.

Filed February 19, 1886.

PARTNERSHIP-PROMISSORY NOTE-WHEN ACT OF PARTNER WILL NOT BIND

FIRM.

One partner cannot, in the absence of express authority, bind the firm or his copartner by a note, executed by him in the firm name, in a transaction wholly outside the apparent and actual scope of the partnership business, although it may appear that the consideration for the note was applied to the payment of a firm debt.1

Appeal from Marion superior court.

Bynum & Beck, for appellant.

Ritter & Ritter, for appellee.

Howk, J. In this case appellant, Bays, alleged in her complaint that on the fifth day of April, 1882, the appellee, Conner, and Arthur L. Blue were partners, trading under the firm name of "The Central Printing Company;" that on the day last named the appellee and Blue, in their said firm name, executed to appellant their promissory note for $500, payable six months after date, to the order of appellant, with 6 per cent. interest from date and attorney's fees; that such note was due and unpaid; and that there was due thereon the sum of $600, for which sum appellant demanded judgment. The summons issued on this complaint was returned "not found" as to Arthur L. Blue. Appellee, Conner, separately answered by a denial, verified by his oath, of every material allegation of appellant's complaint. The issues thus joined were tried by the court at special term, by and before a special pro tem. judge, and a finding was made in favor of appellant, Bays. Over the motion of appellee, Conner, for a new trial, the court rendered judgment against him, in appellant's favor, for the amount found due on the note. The record shows that 20 days after the rendition of the judgment against Conner, an appearance was entered to appellant's action by Arthur L. Blue, and a separate judgment was rendered against Blue for the amount due on the note. On the separate appeal of Conner to the court below in general term, the judgment of the special term against him was in all things reversed. From this judgment of the general term, appellant prosecutes this appeal to this court, and she has here assigned as error that the general term erred in reversing the judgment at special term. Appellee, in general term, assigned as error the overruling of his motion. for a new trial. In this motion the causes assigned for such new trial were: (1) The finding of the court is contrary to law; and (2) the finding of the court is not sustained by sufficient evidence. It is manifest, therefore, that the case is presented for our decision upon the evidence appearing in the record, and the law applicable to the facts established by such evidence. Appellant has made the opinion of the general term a part of the record on this appeal; and as it contains, we think, a fair

1Respecting power of one member of a firm to bind the other members by executing or indorsing negotiable paper, see Steuben Co. Bank v. Alburger, (N. Y.) 4 N. E. Rep. 341, and note, 342-344.

summary of all the facts established by the evidence in this case, we adopt such summary of facts as part of our opinion, as follows:

"Conner and Blue were partners in the printing business, under the firm name of the Central Printing Company.' The firm was indebted to the Central Bank of Indianapolis, upon overdraft and note, to the amount of $814.11 on April 17, 1882, when the bank failed and closed. Conner settled with the bank for $323.64 of this amount by an arrangement with the bank, by which he was allowed to set off against such amount an individual deposit of like amount; and he was credited with a like amount upon the books of the Central Printing Company. It was then agreed between him and Blue that the latter should settle with the bank for the remainder of the firm's indebtedness to the bank, and receive credit therefor upon the books of the firm. At this time the plaintiff, who was the mother of Blue's wife, held a certificate of deposit, issued by such bank, for $140, and also another certificate for $360, issued by such bank to the wife of Blue, but which, it is claimed by plaintiff, belonged to her. After the failure of such bank, Blue, who acted also as the agent for the plaintiff in the matter, procured the two certificates of deposit to be indorsed in blank, and with them settled with the bank the remainder of its claim against the printing company. In consideration of the assignment of these two certificates, Blue, instead of executing his individual note, gave the note in suit. This was dated April 5th, but was not drawn until about April 7th, and after the suspension of the bank, and was not delivered until several days thereafter. No entry of this note was made upon the books of the firm by Blue, nor did Conner know of its existence until after Blue had absconded."

These were the material facts, bearing upon the issues in the cause, which were established by the evidence appearing in the record. Upon these facts it seems to us that the questions for our decision may be thus stated: Is the note in suit the note of the partnership doing business under the firm name of the Central Printing Company? Or do the facts established by the evidence show that Arthur L. Blue, as a member of such firm, was authorized to execute the note in suit in such manner as to bind the firm, or his copartner, Conner, for the payment of such note? We are of opinion that each of these questions must be answered in the negative. The facts proved clearly show that the Central Printing Company was in no sense a trading or commercial copartnership. As the firm name indicated, and as the evidence established, the business of the partnership was confined to the printing business. The Central Printing Company was indebted to the Central Bank of Indianapolis, at the time the bank failed and ceased to do business, on April 7, 1882. Of this indebtedness Conner settled with the bank for $323.64, out of his own individual means. As to the balance of such indebtedness, towit, $490.47, it was then agreed between Conner and Blue, upon a satisfactory and sufficient consideration, that Blue should assume and pay such balance to the bank out of his own personal means, and be credited with the amount of such payment on the books of the printing company. Of course, this agreement did not operate to discharge Conner from liability to the bank for the amount of the firm's indebtedness to it which Blue assumed and agreed to pay, but, as between Conner and Blue, the effect of such agreement was to make so much of the firm's indebtedness to the bank as had been thus assumed by Blue his individual debt to the bank, for the payment of which he stood as the principal debtor, and Conner occupied the position of his surety. Under such agreement, Conner had the right to insist that, as between himself and Blue, the latter should pay the amount of the firm's indebtedness to the bank which

he (Blue) had assumed and agreed to pay, out of his own proper and personal means. Hayden v. Cretcher, 75 Ind. 108; Warren v. Farmer, 100 Ind. 593.

The evidence in this case conclusively shows, we think, that the note in suit was executed in the firm name of the Central Printing Company by Arthur L. Blue, without the knowledge or consent, express or implied, of his copartner, Conner. It is further shown by the evidence, clearly and unequivocally, that the only consideration for the note in suit was the purchase by Blue of two certificates of deposit in a suspended and broken bank, at their face value, one held by Blue's wife, and the other by his wife's mother, of whom the latter is the payee of such note and the plaintiff in this suit. Upon the case thus made by the evidence, it must be held, we think, that the transaction between the appellant and Blue, wherein the latter purchased from the former the two certificates of deposit in a broken bank, was not within the apparent scope of the business in which the Central Printing Company was engaged. This being so, the appellant was chargeable with notice that the execution of the note in suit by Blue, in the partnership name of the Central Printing Company, was entirely outside the scope of his partnership authority, and that such note would not be binding on, nor evidence a valid debt of, such firm, or Conner as a member of the firm. In such a case the rule is that one partner cannot, in the absence of express authority, bind the firm or his copartner by a note executed by him, in the name of such firm, in a transaction wholly outside the apparent or actual scope of the partnership business; and this is so where, as in this case, it may appear that the money, property, or chose in action for which the note was given, was applied to the payment of a debt of the firm. Smith v. Sloan, 37 Wis. 285; 1 Colly. Partn. (Wood's Ed.) 660, 641, and 792, and notes; Hickman v. Reineki, 6 Blackf. 387; Ditts v. Lonsdale, 49 Ind. 521; Graves v. Kellenberger, 51 Ind. 66; Hayden v. Cretcher, supra; Lucas v. Baldwin, 97 Ind. 471.

In the case in hand, as made by the evidence, we are of opinion that the court in general term did not err in reversing the judgment against the appellee, Conner, rendered at special term. The judgment of the general term is affirmed, with costs.

(105 Ind. 445)

WARTENA v. STATE.

Filed January 19, 1886.

1. CRIMINAL LAW-TRIAL-DISCRETION OF COURT-TIME OF SITTING.

It is within the province of a trial court, in the exercise of a sound discretion, to regulate the course of business during trials, and during the term, in a proper way, to control its own sittings.

3. SAME RIGHT TO BE HEARD BY COUNSEL-NIGHT SESSION.

The action of a trial court in holding a night session for the purpose of hearing argument in a criminal cause, over an objection of the prisoner's principal counsel, on the ground that he was "worn out by excessive labor in the case in the day-time and by attendance on a sick member of his family at night, so as to be in no condition to make an argument, is not an abuse of its discretion, nor is it a violation of the constitutional right to be “heard by