5. SAME-NATURE OF FORMER PROCEEDINGEVIDENCE.

In a bastady proceeding in which defendant pleaded a judgment of dismissal rendered in a former proceeding, evidence tending to show that the prosecuting attorney had no knowledge of such former proceeding until long after its termination was admissible to show that the state was not a party.

6. SAME DISMISSAL OF FORMER ACTION— EVIDENCE.

In a bastardy proceeding defendant pleaded a judgment of dismissal in a former proceeding. Relatrix replied that her consent to the dismissal was obtained by fraud, and that when it was given her mind was under the absolute control of defendant. Held that, though it appeared that on the day relatrix consented to the dismissal defendant had stated that he would not marry her, nevertheless evidence that they had been engaged was admissible in rebuttal.

Appeal Circuit Court, Montgomery County; Jere West, Judge.

Action by the state of Indiana, on relation of Estella McGill, against Charles W. Gooding. From a judgment for plaintiff, defendant appeals. Affirmed.

Clodfelter & Fine, for appellant. Jones & Murphy, O. P. Lewis, and O. B. Ratcliff, for appellee.

MYERS, J. This is an action begun by appellee against appellant before a justice of the peace, charging appellant with being the father of the relatrix's unborn bastard child. The complaint is in the usual form filed in such actions. On a hearing before the justice, appellant was held to appear in the Fountain circuit court, where was filed a transcript of the proceedings before said justice. Appellant answered in three paragraphs; the first paragraph being a general denial. The second and third paragraphs of answer show such proceedings had before Edward M. Brewer, a justice of the peace of Union township, Montgomery county, Ind., constituting a former adjudication and settlement of the present cause of action. To these latter two paragraphs of answer, appellee answered in three paragraphs; the first two filed in the Fountain circuit court, and the third in the Montgomery circuit court, where the cause was sent on change of venue. The first paragraph of reply is a general denial, the second and third is addressed to the second and third paragraphs of answer separately and severally. The second paragraph of reply, after averring facts covered by the complaint, avers that relatrix and a younger sister are the only living members of her immediate family; that relatrix is an orphan, and at the time her condition became known resided at the home of Jasper N. Philpott; that by reason of her condition she was driven from her then home, and from whence she went to the home of an aunt in the city of Crawfordsville, where she was living at the time the proceedings were had before Justice Brewer; that appellant, as a member of a fraternal order, and relatrix, a member of an auxil

iary society to that order, were frequently in each other's company, and under pretense of love and affection for relatrix, and by virtue of his promise of marriage, and by reason of his standing in the community and said order, had complete control of relatrix's love and confidence; that he made three trips to see relatrix while she resided with her aunt, telling her on the last trip that on account of the publicity as to her condition he would not marry her, but would pay her $50 for the purpose of paying her expenses of lying in, doctor bills, and the like incident to the birth of the child; that without the knowledge and consent of the relatrix he employed an attorney to prepare a complaint, charging him with bastardy, and, on the day the proceedings set out in appellant's answer were

entered and had before Justice Brewer, he informed relatrix that unless she would go before a justice of the peace and sign a receipt he would not do anything for her whatever; "that relatrix was completely crushed in mind, body and spirit by defendant's declaration and the realization of her condition," and, being without a home and wholly destitute of means of support, accompanied appellant to said justice's office, where said proceedings were had, and, without anything being said, or any pretense relative to her accepting any money for the maintenance of the child, but believing and relying upon the fraudulent representations of appellant by him made to her, as to the purpose and purport of the instrument she was signing, relatrix signed a receipt for $50, which was fraudulently represented to her as being a release of his liability to her on account of her pending sickness, and did not know that she was signing anything purporting to be a settlement to her satisfaction for the maintenance of said child unborn; that the prosecuting attorney was not present nor sent for, nor any other person acting for or to advise her, nor did she understandingly enter of record any order, receipt, paper, or any other declaration showing that satisfaction had been made to her for the maintenance of said child; that said proceedings before Justice Brewer were set in motion and carried on by appellant, for the fraudulent purpose of obtaining the settlement of his liability in bastardy, under the fraudulent pretense of paying the expenses of her pending sickness; that said justice had no knowledge of the real purpose for which said receipt was signed, and entered said judgment of dismissal upon the filing of the papers, theretofore prepared by appellant's attorney; that, after she signed the receipt for $50, that sum was paid to said justice, and by him to relatrix, and no hearing of said cause was had; that she received no other consideration, and said sum is wholly insufficient for the maintenance of said child. of said child. The reply further shows an offer to allow a credit of $50 against any judgment which may be rendered against

appellant in this action; that relatrix is without any money or means with which to repay said $50 or any part thereof. A demurrer for want of facts was addressed to this paragraph and overruled. Thereupon on motion and affidavit the venue of this cause was changed to the Montgomery cir cuit court, where a third paragraph of reply was filed. This paragraph avers practically the same facts as those stated in the second paragraph, with the additional averment that said justice of the peace, Brewer, knew at the time he paid relatrix said $50 that she did not understand the nature of the papers and records which she had signed; that he knew that appellant was not paying relatrix any money whatever for the maintenance of said unborn child; that he conspired with the defendant for the purpose of deceiving relatrix and in procuring her to enter said satisfaction of record, knowing that the proceedings before him were for the purpose of obtaining settlement of defendant's liability in bastardy, under the fraudulent proceedings and pretext to pay relatrix for her sickness. A demurrer to this paragraph of reply, for want of facts sufficient to avoid either the second or third paragraphs of answer, was overruled. The issues thus formed were submitted to a jury, trial and verdict in favor of appellee, motion for a new trial overruled, judgment in accordance with the verdict of the jury, and for $550, with a credit of $50, and ordering the same paid in partial payments, and from which judgment appellant appeals to this court.

1. This is a civil action. Reynolds v. State ex rel., 115 Ind. 421, 17 N. E. 909; State v. Carlisle, 21 Ind. App. 438, 52 N. E. 711. And conceding that the answers incorporating the proceedings had before Justice Brewer in bar of this action are sufficient brings us to the consideration of the facts pleaded in the second and third paragraphs of the reply. It is settled that all prosecutions for bastardy must originate before a justice of the peace. Armstrong v. State, 24 Ind. App. 289, 56 N. E. 681. That such proceedings must be prosecuted in the name of the state, and for the benefit of the illegitimate child. Gresley v. State ex rel., 123 Ind. 72, 24 N. E. 332; Ice v. State ex rel., 123 Ind. 590, 24 N. E. 682; Dehler v. State ex rel., 22 Ind. App. 383, 53 N. E. 850. Our Code (section 1006, Burns' Ann. St. 1901) provides that "the prosecuting witness, if an adult, may at any time before final judgment, dismiss such suit if she will first enter of record an admission that provision for the maintenance of the child has been made to her satisfaction, and such entry * shall be a bar to all other prosecutions for the same cause and purpose." Considering the above decisions along with the Code provision, it would seem that, while the state is a party to the action, and has rights which the relatrix cannot

waive, yet she has the power to dismiss such action, and such dismissal and judgment thereon rendered by a justice of the peace, pursuant to section 1006, supra, will constitute a complete bar to another action for the same cause. State ex rel. v. Carlisle, supra. In the case at bar appellant argues that Justice Brewer had jurisdiction of the subject-matter, and, the proceedings and judgment appearing regular on their face, such judgment must control until set aside by a direct attack, even though it be tainted with fraud. Shideler v. State, 129 Ind. 523, 525, 28 N. E. 537, 29 N. E. 36, 16 L. R. A. 225, 28 Am. St. Rep. 206; Palmerton, v. Hoop, 131 Ind. 23, 28, 30 N. E. 874. Appellee claims that each paragraph of the reply shows that relatrix was induced by fraud to enter the acknowledgment and dismissal set up in appellant's answers, and for that reason, and because the state was not in fact a party to the proceedings before Justice Brewer, the judgment was a nullity. Gresley v. State ex rel., supra; Ice v. State ex rel., supra. In our opinion each paragraph of the reply exhibits facts showing that the proceedings had before Justice Brewer were procured, managed, and controlled by appellant; that the state was a party only in name and not in fact. No one was present having authority to act for the state. In the name of the state, appellant brings an action against himself to secure maintenance for his own offspring. He appears to the action and submits himself to the jurisdiction of the court. He has the mother of the child accompany him into open court, and there under the sanctity of a judicial proceeding, and for the purpose of relieving the public and society of the burden of maintaining such child, he pays to the penniless, homeless mother, who has just arrived at her majority, the munificient sum of $50, and she enters of record an admission that provision for the maintenance of the child has been made to her satisfaction. In our opinion, considering the facts disclosed by the reply, the state was not a party to the proceedings before Justice Brewer, and, this being true, the judgment was not rendered in an adversary proceeding, and for that reason will not bar another action for the same cause. Shideler v. State, supra; Ice v. State ex rel., 123 Ind. 593, 24 N. E. 682. The section of the Code above referred to does not refer to the relatrix as a party, but by its terms she is designated as the prosecuting witness, and the Supreme Court, in Ex parte Hasse, 50 Ind. 149, and this court, in Williams v. State ex rel., 3 Ind. App. 350, 29 N. E. 1079, held that the relatrix was not a party to the action. Therefore, granting that she had full authority to determine the question of satisfactory provision for the child's maintenance, this she could do only in case there was a bona fide action pending, and, having determined that there was no such action pending before Justice Brewer,

her acknowledgment is unavailing for any purpose, as the entire proceedings were void. We are clearly of the opinion that the weight of authority in this jurisdiction sustains the ruling of the trial court in holding that each paragraph of the reply contains facts sufficient to avoid appellant's answers.

2. Appellant also insists that the paragraphs of reply are bad for the reason that neither contain an allegation that the money paid to relatrix was ever refunded, or that an offer to refund the same was made before the commencement of this action, citing State ex rel. v. Carlisle, supra. By reference to that case it will be seen that the relatrix, upon her own motion, began the action whereby upon dismissal she received $20. All the parties to that action appeared in person and by counsel, and this court held that a judgment rendered before a justice of the peace, under the facts appearing, was sufficient to bar another action for the same cause. Also that, before such judgment could be set aside, the pleadings must affirmatively show a refunding or offer to refund the money paid to the relatrix. There is a marked difference between that case and the case at bar. In the Carlisle Case the money was paid and the dismissal had in an adversary proceeding, and was not a voluntary payment on the part of the defendant, while in the case at bar, the proceedings being absolutely void, for the reasons heretofore stated, the payment was a voluntary contribution, or at least in so far as it was paid on account of any judicial proceeding.

3. The questions arising on the assignment of error, based upon the overruling of appellant's motion for a new trial, relate to the admission of certain evidence and to the giving and in refusing to give to the jury certain instructions. After a careful reading and consideration of the evidence admitted over appellant's objection, we find no error in this particular authorizing a reversal of the judgment. It is the duty of the prosecuting attorney to represent the state in such actions, and, upon the theory of the replies filed, any evidence tending to show that the state's representative was not notified, and had no knowledge of such proceeding until long after its disposition, was competent as tending to prove the ultimate fact that the state was not a party. The evidence tending to prove that relatrix and defendant were engaged to be married was admissible, unless because it was offered on rebuttal. Ramey V. State ex rel., 127 Ind. 243, 26 N. E. 818; Gemmill v. State ex rel., 16 Ind. App. 154, 43 N. E. 909. Referring to the reply, we find allegations showing that relatrix was under the absolute control of appellant on the day she accompanied him to the office of Justice Brewer, and, while he told her on that day he would not marry her, evidence of such agreement was nevertheless admissible on rebuttal as tending to show the relations existing between them, and as a circum

stance to explain the actions of a young, penniless, homeless, inexperienced, and heartbroken girl, wishing to curry favor with the author of her downfall. We are not to say what weight should be given this evidence, but the jury had a right to consider it for whatever it was worth. Appellant requested the court to give the jury two instructions. Both were refused. These instructions are to the effect that, if the jury should find that the proceedings had before Justice Brewer were as alleged in appellant's answers, under the evidence in this case they should return a verdict for appellant. These instructions took from the jury their right to consider the evidence applicable to the reply, and were based upon the theory that there was no evidence in the record tending to prove that the Brewer judgment was a nullity. In our opinion there was no error in refusing to give these instructions. The court, upon its own motion, in substance told the jury that, if they found that the action and proceedings had before Justice Brewer were procured and brought about wholly by appellant, and that the money paid to relatrix was paid by appellant and received by her in payment and on account of expenses of her pending sickness, it would not be necessary to return or offer to return this money prior to bringing this action in order to authorize a recovery. There is evidence in the record to which this instruction is pertinent, and, this being true, what we have heretofore said on the question raised by this instruction warrants the conclusion that it was not erroneous.

Finding no error in the record, the judg ment of the trial court is affirmed.

(38 Ind. App. 396) BOND V. MAY. (No. 5,787.) (Appellate Court of Indiana, Division No. 1. June 22, 1906.)

1. PARTNERSHIP-ACTIONS BETWEEN NERS-ACCOUNTING.

PART

One partner cannot maintain a suit against his copartner to recover an alleged indebtedness growing out of a partnership transaction until the affairs of the partnership are closed up and its debts are paid.

[Ed. Note.-For cases in point, see vol. 38, Cent. Dig. Partnership, § 157.] 2. SAME.

Plaintiff and defendant purchased land, which was deeded to them as co-tenants. There after defendant lived on part of the land and farmed it with implements and stock, part of which were furnished by plaintiff under an agreement that defendant might use such produce of the farm as was necessary for the support of himself and his family and apply the balance to the taxes upon the entire tract and on the purchase money. Soon after plaintiff conveyed his undivided half interest in onehalf of the land to defendant, and vice versa. There were certain improvements on the land conveyed to defendant, and it was agreed that when plaintiff desired to improve his portion of the land defendant should pay him one-half the value of the existing improvements and turn over the implements and stock which had origi nally been furnished by plaintiff. While de

fendant was farming the land under this arrangement he gave certain notes for borrowed money which he used for his own purposes, which notes were signed by defendant, his wife, and by plaintiff. There was no firm name, and no evidence that defendant had any authority to bind plaintiff by a signature on the notes, and plaintiff in fact signed the notes some time after they were executed and signed by defendant. Held, that no partnership existed between the parties, so that the notes were not partnership obligations.

Appeal from Circuit Court, Jasper County; Chas. W. Hanley, Judge.

Action by Peter May against Wilbur D. Bond. From a judgment for plaintiff, defendant appeals. Affirmed.

Foltz & Spitler, for appellant. Jesse E. Wilson, for appellee.

BLACK, J. The appellee, who was the plaintiff, and the appellant, who was the defendant, in 1894 contracted with one Parkinson to purchase from him certain real estate, being two adjoining quarter sections of land in Jasper county; and Parkinson, in February, 1895, by his general warranty deed conveyed the land to the appellee and the appellant as tenants in common; the purchase price being $11,200. At and before this conveyance the grantees paid a part of the price, $3,500, each paying an equal portion thereof, and they became jointly indebted to Parkinson for the remainder of the price, $7,700, and they executed to him their mortgage therefor upon the half section. The appellee was the appellant's father-inlaw, and they resided with their families in the same neighborhood in Illinois, and the appellee continued to reside there; but in the spring of the year 1895 the appellant removed with his family to the land so conveyed to him and the appellee, and took possession of the half section, and he continued to occupy and to use for agricultural purposes the two quarter sections for eight years thereafter. He brought with him certain agricultural implements and animals owned by him, and the appellee sent to the farm certain agricultural implements and animals owned by him, which were used upon the farm. In August, 1895, the appellant conveyed to the appellee the undivided onehalf interest of the former in the western quarter section, and the appellee conveyed to the appellant the undivided one-half interest of the former in the adjoining eastern quarter section; each conveying for the expressed consideration of $5,600, and the deed of conveyance to each being expressly made subject to the purchase-money mortgage to Parkinson, and each grantee by the terms of the deed of conveyance to him assuming and agreeing to pay, as part of the consideration for the real estate so conveyed to him, the one-half of said mortgage and the one-half of the purchase-money notes to Parkinson secured thereby. There was evidence from which it might have been found that the sum of $6,000 of this balance of purchase

money was paid in equal portions by the parties, and that the remainder thereof was paid by the appellant, who also paid the taxes on the two tracts while he continued to occupy and use the appellee's quarter section, and also paid the greater portion of the interest as it accrued upon the unpaid part of the purchase money; that the appellee paid a small portion of the interest, and furnished to the appellant personally certain definite sums of money. After the land had been thus fully paid for, the appellant, who for eight years had resided with his family in a dwelling upon his own quarter section, using the other quarter section as a part of his farm, ceased to hold and use the quarter section so owned by the appellee, which thereupon was taken by its owner, who proceeded to erect a dwelling house thereon, and thereafter this land was occupied and used by another son-in-law of the latter. At this time some portion of the animals and implements of those so furnished by the appellee were retaken by him.

This was a suit for an accounting and for the recovery of any balance found due the appellee, there being a counterclaim filed by the appellant. The court found there was due to the appellee from the appellant $678, and that the latter should account to the former for that sum, and that such sum due. the appellee from the appellant was wholly unpaid. As part of the finding, it was stated: "The court does not take into account any indebtedness that may be owing by the partnership, and does not decide any question concerning the same." This statement in the finding furnishes the subject of the contention here. It is true, as suggested on behalf of the appellant, that one partner cannot maintain a suit against his copartner to recover an alleged indebtedness of the latter to the former growing out of the partnership transactions, until the affairs of the partnership are closed up and its debts are paid. Briggs v. Daugherty, 48 Ind. 247; Lang v. Oppenheim, 96 Ind. 47; Powell v. Bennett, 131 Ind. 465, 30 N. E. 518. A court will not ordinarily entertain matters relating to partnership accounts between partners, until by its judgment or decree a final adjustment of the partnership business can be effected. Thompson v. Lowe, 111 Ind. 272, 12 N. E. 476. One partner may maintain an action to compel an accounting and to recover such sum as may be found due him upon the final adjustment of the partnership affairs, and if necessary for the accomplishment of such result a receiver may be appointed; but in such an action there cannot be a recovery in favor of one partner against the other upon a partial adjustment of the affairs of the partnership which leaves some of the partnership debts unpaid. See Meredith v. Ewing, 85 Ind. 410; Miller v. Rapp, 135 Ind. 614, 34 N. E. 981, 35 N. E. 693; Adams v. Shewalter, 139 Ind. 178, 38 N. E. 607.

It is very difficult to ascertain from the record before us any definite terms or understanding of the parties upon which the land of the appellee was held and used by the appellant. The evidence in this respect is obscure and somewhat contradictory. The parties appear therefrom to have been ignorant and unmethodical, and their intentions are indicated by their conduct more than by any expressions to each other shown in evidence. Perhaps their relationship and the fact that the daughter and grandchildren of the appellee were members of the appellant's family residing on the land contributed to the indefiniteness of the dealings of the parties with each other. A dwelling house and some farm buildings were on the eastern quarter section, which in the voluntary partition was conveyed to the appellant, and he and his family resided there from the beginning of their occupancy; and it appears to have been agreed that, whenever the appellee should determine to build a residence on his own quarter section, the appellant should pay the appellee one-half the value of those improvements upon the land so owned originally by the parties as tenants in common; also, that the appellant and his family should have the right to consume and appropriate to their own use so much of the produce of the land as might be needed for their subsistence, without any obligation to account therefor to the appellee; also, that the land originally held in co-tenancy should be divided equally, each party owning in severalty one quarter section and paying the original grantor therefor one-half of the purchase price of the whole half section; also, that the appellant should occupy and cultivate all the land and himself own its products and dispose thereof at his pleasure, and after providing for his family out of such products, should apply the remaining surplus of the net income of the farm to the payment of the taxes thereon, including the taxes on the appellee's quarter section, and to the payment of the accruing interest upon the unpaid purchase money, for the payment of one-half of which as between themselves each was bound to the other, and also to the payment of unpaid principal; and that when the appellee should take over the possession and use of his separate portion of the land, the animals and utensils furnished by him should be restored to his possession. Whatever surplus of the net income was thus applied in payment of principal, interest, and taxes was used for the equal benefit of each of the parties, and its payment in that manner amounted to an equal division of such surplus, which perhaps can scarcely be called the net profits of a business, especially in view of the use of an indefinite and varying portion of the income in the support of the appellant and his family. It seems to have been the intention of the

parties that the appellee was entitled to have the one-half of such surplus applied to his benefit as compensation for the use of his

portion of the land and of the use and enjoyment for the time being of his personal property, which continued to be owned by him individually. It seems to have been contemplated that such personal property should be returned or accounted for, and that the onehalf of the value of the improvements on appellant's quarter section should be accounted for, and that one-half of any net surplus of income not paid out for the benefit of both parties as purchase money, interest, and taxes should be accounted for, and that any sums of money furnished by the appellee to the appellant at the special instance and request of the latter for his individual uses should be repaid or accounted for. While the word "partnership" was used somewhat frequently in the court below, especially on the part of the appellant, the relation of the parties to each other does not seem to be properly so characterized. Some of the appellee's demands were based upon his right to a portion of the surplus of the income of the farm; yet such portion was due him as compensation for the use and enjoyment of his property, rather than as a share of the net profits of the business of a partnership.

The indebtedness referred to in the finding was evidenced by two certain promissory notes, one dated December 23, 1899, for $500, signed by the appellant and by the appellee, and one dated August 20, 1900, for $1,000, signed by the appellant and his wife and by the appellee. These notes were payable to the appellant's father, and were given, the first for $500 borrowed by the appellant from his father at its date, and the second for $500 so borrowed at its date, and also in lieu of a note of the appellant alone, theretofore given, for $500 previously borrowed by him of his father. The loans were made to the appellant individually. The notes were not signed in a firm name. There was no firm name, and there does not appear to have been any authority in either party to sign his own name as a firm name, or for or on behalf of both of the parties, or any intention to do so. Each signed as an individual, as and for himself alone. Each note was signed by the appellee some time after its execution, and, so far as appears in this case, without consideration. The money for which the notes were given did not become the property of the appellee, and he does not appear to have had any control over its disposition, and he testified that he did not know how it was used. It was owned and controlled by the appellant alone, who used it for various purposes, paying some of it upon the principal mortgage debt, some for interest thereon, some for taxes, some for cattle purchased by him alone, and some for wages of men who worked on the farm. Some payments were made by the appellant to his father upon this indebtedness with money derived from profits from the land. If he used any part of this, his own money, for the benefit of the appellee, and not wholly for payment of his own por