call for further report. No serious objection | This presents the same question as was preis made here to so much of the judgment of sented and decided in the case of State v. the court below as establishes the amount of Dittmer, ante, 88, (this term.) Upon the authe plaintiff's claim, and requires the as- thority of that case we hold that the indictsignee to allow the same in the administra- ment is sufficient, and the court erred in sustion of his trust, and to that extent the judg-taining the motion to quash. Judgment ment is affirmed. But the judgment estab-reversed at the costs of the appellee, with lishing the validity of the mortgage, and giv- instructions to overrule the motion to quash. ing it priority over the assignment, is reversed, and judgment will be entered upon that branch of the case for the trustee. Judgment accordingly. (120 Ind. 388) STATE v. DITTMER. (Supreme Court of Indiana. Oct. 19, 1889.) CRIMINAL LAW-EXEMPTIONS. One who carries a claim "upon his own person" out of the state, with intent to deprive the debtor, who is within its jurisdiction, of the benefit of exemption laws, "sends" it out of the state, within the meaning of Rev. St. Ind. 1881, § 2162, which provides for the punishment of every person who, with intent to deprive a resident of the state of his rights under its exemption laws, "sends or causes to be sent" out of the state any claim against a debtor within its jurisdiction, for collection by garnishment. Following State v. Dittmer, ante, 88. (122 Ind. 64) BRISTOW . MCCLELLAND. 1 (Supreme Court of Indiana. Oct. 19, 1889.) EXECUTORS-ACCOUNTING-APPEAL-REVIEW. 1. An exception to a master commissioner's report, charging an administrator with all the solvent claims due the estate, raises no question as to the correctness of the findings when the testimony is not preserved by bill of exceptions. 2. Where a decree directs an estate to be settled as insolvent, as prayed for by the administrator, and he makes no motion to modify the decree, he cannot attack the decree on appeal because it also directs him to pay into court within 30 days the money found to be in his hands. A. E. PAIGE, Judge. Marcellus Bristow and James N. Sims, for appellant. S. O. Bayless and J. V. Kent, Appeal from circuit court, Dubois county; for appellee. OSCAR M. WELBOURN, Judge. John L. Bretz, Pros. Atty., J. F. Tiernan, and Louis T. Michener, Atty. Gen., for the State. C. L. Jewett, for appellee. COFFEY, J. On the 4th day of April, 1885, the appellant, as administrator of the estate of Williamson Fanar, deceased, filed a petition in the Clinton circuit court, praying for OLDS, J. This is a prosecution under sec- an order to settle the estate represented by tion 2162, Rev. St. 1881. The prosecution him as insolvent. The appellee and others, was commenced before a justice of the peace. creditors of said estate, resisted the granting There was an appeal to the circuit court, and, of such order, upon the alleged ground that on leave of the court, the defendant with- the estate was solvent, and filed an answer, drew his plea of not guilty, and moved to charging that the appellant had wasted the quash the affidavit, which motion was sus- estate, and had taken credit in his reports tained, to which ruling of the court the state for a large sum on false and fraudulent excepts, and appeals, and assigns such ruling vouchers. Pending these proceedings, the as error. The affidavit charges that the de- court entered an order requiring the appelfendant, Dittmer, on the 13th day of Febru-lant to file a report showing the actual conary, 1889, at said county of Dubois, and state dition of the trust in his hands. Pursuant of Indiana, being then and there the owner to this order, the appellant filed a report, of a certain demand on contract against him, which he claimed was a compliance with the the said Isaac A. Lockwood, amounting to order of the court. To this report the appelthe sum of $16.55, with intent thereby to de- lees filed exceptions, and also filed a petition prive the said Isaac A. Lockwood of his for the removal of the appellant from the rights under the statute of Indiana on the trust, charging therein that he had misapsubject of the exemption of property on pro-propriated the trust funds, was insolvent, and ceedings in garnishment, did then and there unable to repay the same, and that they would unlawfully take upon his person said claim be unable to collect their claims in any other into the state of Kentucky, for the purpose manner than by suit on his bond. Upon isof collecting the same by proceedings in gar-sues formed, the cause was tried by the nishment against the said Isaac A. Lock wood, court, and evidence taken by a short-hand reand against the Louisville, Evansville & St. porter. Without objection from either party, Louis Railroad Company as garnishee de- the cause, with the evidence taken, was refendant, etc. The objection made to the af- ferred to the Hon. Joshua Adams, as a spefidavit is that the allegation that the defend- cial master commissioner, to hear further ant "did unlawfully take upon his person proof, and to report to the court the condition said claim into the state of Kentucky" does of the trust. The commissioner filed his renot charge a crime under section 2162 of the port, showing that there was in the hands of statute, which declares that whoever sends the appellant the sum of $1,521.07, which he or causes to be sent out of the state of Indi- had held since the 17th day of June, 1884, ana any claim for debt to be collected by pro-and charging the appellant with 6 per cent. ceedings in attachment, garnishment, etc., interest on the same from that date, which, shall, upon conviction thereof, be fined, etc. added to the principal, left in his hands, un1 Rehearing denied accounted for, the sum of $1,723.40. After On the final hearing of the cause the court hearing and considering the evidence, the made an order in favor of the appeiiant that court made a finding that there was that sum the estate represented by him should be setin the hands of the appellant, and entered an tled as insolvent, and, in addition thereto, order that the estate should be settled as in- made the order of which the appellant comsolvent, and that he should pay the money plains; but no motion was made by appellant then in his hands into court within 30 days, to modify or change the order in any respect. to be applied to the costs of administration Where a judgment gives proper relief, and, in and the liquidation of the claims against said addition thereto, other relief not proper, but estate. The appellant filed a motion and no objection has been made to the judgment, reasons for a new trial, which was overruled, and no motion to modify it, it will not be reand he excepted. He assigns as error here: versed. As no motion was made in the cirFirst, that the circuit court erred in overrul- cuit court to modify the order and decree ing the motion for a new trial; second, that now under consideration, no question in rethe court erred in refusing to consider the ex-lation thereto is presented for our consideraceptions of the appellant to the report of the tion. Scotton v. Mann, 89 Ind. 404; Stout master commissioner; third, that the court v. Curry, 110 Ind. 514, 11 N. E. Rep. 487; erred in adopting and confirming the report Baddeley v. Patterson, 78 Ind. 157; Baker v. of the master commissioner, and in making Allen, 92 Ind. 101; Earle v. Simons, 94 Ind. the same the basis of the final decree; fourth, 573; Trust Co. v. Beville, 100 Ind. 309. It that the court erred in rendering its order is not improper to remark, however, that it and decree, in ordering the appellant to pay appears from the evidence in the record, into court, to be applied on the liabilities of taken before the cause was referred to the the estate, the money found to be in his master commissioner, as well as by the report hands, within 30 days. of said commissioner, that letters of administration were granted to the appellant in the year 1877, and no excuse appears for the long delay in the settlement of the estate. We know of no reason why the court may not make any proper order compelling a speedy settlement of the trust in the hands of the appellant. The order in question was of that character. We find no error in the record for which the judgment should be reversed. Judgment affirmed. The only matters urged by the appellant in his brief relate to supposed errors in the report of the master commissioner and the order of the court requiring the appellant to pay into court the money in his hands as administrator, to be applied to the satisfaction of the costs of administration and the payment of claims against the estate. In the report of the master commissioner it is found by a statement of the condition of said estate filed by the administrator that he had collected of the notes and accounts charged to him on the inventory the sum of $2,333.18. It is claimed by the appellant that this finding is erroneous, and that the true amount shown by the statement to have been collected is $1,857.60. It is true that the items of collections contained in the statement in question foots up the amount contended for by the appellant; but, deducting the claims reported in that statement as being insolvent from the claims inventoried, would leave the amount reported by the commissioner. The cause was referred to the master commissioner, with power to compel the attendance of witnesses, and hear evidence. It may have been shown in evidence before the commissioner that the appellant had collected all the solvent claims shown by the inventory; and, as he is not charged in such inventory with the full amount of the claims therein contained, we cannot say that the report of the commissioner does not state the true amount which came into the hands of the appellant. The evidence before the commissioner is not in the record, and in such case an exception to the report of such commissioner raises no question as to the correctness of his finding. Cunningham v. Cunningham, 94 Ind. 557; Borchus v. Association, 97 Ind. 180. Such bill of exceptions must be signed by the master commissioner. Clark v. Van Court, 100 Ind. 113; Hauser v. Roth, 37 Ind. 89; Lee v. State, 88 Ind. 256. (120 Ind. 384) GLATT v. FORTMAN et ai. (Supreme Court of Indiana. Oct. 19, 1889.) NEGOTIABLE INSTRUMENTS-PAYMENT. Under Rev. St. Ind. § 368, which provides that in an action on a note payable at a particular place demand at that place need not be proved, but the opposite party may show readiness to pay at such place, an answer alleging that on the day the note sued on became due defendants paid to the amount due, and directed the note to be paid; that bank where the note was made payable the they did not then know who held the note; and that long after the money was deposited the bank became insolvent,-is bad, as the bank cannot be deemed the payee's agent. Appeal from circuit court, Jennings county; JEPTHA D. NEW, Judge. Action by Joseph Glatt against Frank Fortman and John Henry. Plaintiff appeals. A. G. Smith, for appellant. John Overmyer and Frank E. Little, for appellees. ELLIOTT, C. J. The appellant's complaint is founded on a promissory note executed by the appellees. The note contains a provision making it payable at the Jennings County Bank. The answer alleges that on the day the note became due the appellees paid to the bank the principal and interest of the note, and directed that it be applied to its payment; that at the time the money was placed in the bank the appellees did not know who the holders of the note were; and that long after the money was deposited the bank became insolvent. The answer must be adjudged bad. We have a statute which reads thus: "In any action or defense founded upon a bill, or note or other contract for the payment of money at a particular place, it shall not be necessary to prove or aver a demand at the place; but the opposite party may show a readiness to pay such a demand at the proper place." Section 368, Rev. St. The effect of this statute is to overthrow the rule sanctioned in Palmer v. Hughes, 1 Black f. 328, and with the fall of that rule fell the right of the maker of a promissory note payable at a particular bank to discharge the obligation by depositing the money in the bank for the benefit of the payee. As the law provides that the holder is not bound to present the note to the bank for payment in order to charge the maker, it necessarily follows that money deposited in the bank cannot be deemed to be deposited with the payee's agent. It is not placed there at his risk, but at the risk of the payor. The readiness to pay at the place designated constitutes a defense, if properly followed up; but the deposit of the money for the payee does not discharge the maker of the note. The obligation remains in force until payment is made to the payee or his agent, and, unless the note is in the hands of the bank, it is not the payee's agent. Wallace v. McConnell, 13 Pet. 136; Ward v. Smith, 7 Wall. 447; Brabston v. Gibson, 9 How. 263; Adams v. Hackensack, 44 N. J. Law, 638; Gas Co. v. Pinkerton, 95 Pa. St. 62. The law is a factor in every contract, and it enters into the contract before us, and relieves the payee of the note from the duty of presenting it at the place of payment. As the law provides that the note need not be presented to the bank, the payor had no right to act upon the presumption that the bank was the payee's agent, nor to presume that the payment to the bank discharged him from liability. The rule upon which the payor is bound to act is that the bank is not authorized to receive payment unless the note is lodged with it, for the designation of the place of payment does not bind the payee to present the note at that place; and, as he is under no obligation to do this, something must be added in order to authorize such a payment to be made to the bank as will extinguish the debt. This is well settled by the adjudged cases. We attach no importance to the clause on the note waiving presentment for payment, for we think the case governed by the general rule that the designation of a bank as the place of payment does not authorize a deposit at the payee's risk where there is no obligation resting upon him to present the note at the place designated. The waiver clause is inserted, it may not be amiss to say, for the purpose of holding the indorsers without a presentment for payment, and it does not affect the rights of the makers of a promissory note. It is the law that dispenses with the necessity of presenting the note at the place fixed, and of this law the contracting parties were bound to take notice. Judgment reversed. BERKSHIRE, J., did not take any part in the decision of this case. (120 Ind. 495) JASEPH V. KRONENBERGER et al. 1 (Supreme Court of Indiana. Oct. 19, 1889.) GARNISHMENT. tachment to issue in certain cases on debts not 1. Rev. St. Ind. 1881, § 913, which allows an atdue, does not warrant a personal judgment upon such a debt. the latter's creditors, and in pursuance of the con2. One who conspires with a debtor to defraud spiracy has property conveyed to him by the debtor, for which he pays the full agreed price, is not thereby rendered liable to garnishment at the suit of such creditors. Appeal from circuit court, Vanderburgh county; WILLIAM F. PARRETT, Judge. Action by David Kronenberger and Heiman Barnett against Simeon Jaseph, John C. Fares, and Larkin Fitzgerald. Defendant Jaseph appeals. Alexander Gilchrist and Curran A. Ds Bruler, for appellant. James M. Shackelford and S. B. Vance, for appellees. BERKSHIRE, J. The appellees Kronenberger and Barnett were plaintiffs in the court below. The appellant and the appellees Fares and Fitzgerald were the defendants. The original or first paragraph of the complaint was filed and the action commenced on the 26th day of February, 1885. On the 9th day of May following a second paragraph of complaint was filed, and on the 26th day of October, 1886, a third paragraph was filed. The first paragraph is not in the record, nor is it necessary that it should be, for it was upon the second and third paragraphs that issues were joined, and the case tried. The following is an abstract of the third paragraph of the complaint as we find it in the brief filed by counsel for the appellees Kronenberger and Barnett: "(1) That the defendants Larkin Fitzgerald and John C. Fares, by their promissory notes dated the 19th day of April, 1884, agreed to pay plaintiffs, twelve months therefrom, the sum of three hundred and forty dollars, with interest thereon at eight per cent. per annum from date until paid, with five per cent. attorney's fees. A copy thereof is filed with the first paragraph, and is referred to and made part thereof. No part of said note has been paid. (2) John C. Fares is only the surety of defendant Larkin Fitzgerald in the said notes. (3) That on the 1st day of July, 1884, the defendant Larkin Fitzgerald made a mortgage to defendant Fares on sundry articles of personal property therein mentioned, consisting of mules, horses, farming implements, and harness, and a crop of corn growing on two hundred and thirty-five acres 1 Rehearing denied, It is not necessary to set out an abstract of the second paragraph, as it does not differ materially from the third. On the 12th day of January, 1886, affidavits in attachment and garnishment were filed. Among other things, it was alleged in the affidavit in attachment that "the defendant Larkin Fitzgerald had sold, conveyed, or otherwise disposed of his property subject to execution, with the fraudulent intent to cheat, hinder, and delay his creditors;" and in the affidavit in garnishment, among other things, it is stated "that he [the affiant] has good reason to believe that Simeon Jaseph is indebted to the defendant Larkin Fitzgerald, and has the control or agency of certain money of the said Larkin Fitzgerald, which the sheriff cannot attach by virtue of the writ issued herein." of land in the county of Henderson and state of Kentucky, subject to a lien for rent, to secure said Fares in the payment of a note of even date there with, for fifteen hundred dollars, due nine months after date, with interest at seven per cent; and also to secure said Fares from any loss by reason of any further advancements that might be made or any indorsements by said Fares for said Fitzgerald. (4) The said mortgage was made and acknowledged in Vanderburgh county, Ind., but at its date Fitzgerald resided in the county of Henderson and state of Kentucky, and the whole of the property embraced in said mortgage was situated therein, and the mortgage was there duly recorded according to the law of that state. (5) On the 9th day of December, 1884, the defendant John C. Fares made a mortgage of all the property owned by him to John Kistner and others, The appellant answered the main action in to secure sundry debts other than that of two paragraphs. The first paragraph was a plaintiffs, which mortgage was duly acknowl- general denial, and the second paragraph was edged and recorded. The said debts exceed- as follows: "That the appellant bought from ed in amount the value of said property, and Fares the note and mortgage of Fitzgerald, the whole thereof has been exhausted in their and from Fitzgerald the whole of the proppayment. The said Fares is wholly insolv-erty described in the mortgage, and paid him ent, and has no property out of which plain- therefor one thousand dollars, in addition to tiff's said debt or any part thereof can be said note of fifteen hundred dollars, which made. (6) On the 10th day of December, was secured by said mortgage, which was 1884, the said John C. Fares, by deed of that the full value of said property. That before date, conveyed to the defendant Simeon his said purchase he was assured by Fares Jaseph all of his property, being the same and Fitzgerald that Fares had made no inembraced in his said mortgage, above men- dorsements for Fitzgerald, nor any advancetioned, in trust for the payment of his debts. ments to him, and so had no interest in the The said trust was accepted by the said mortgage. To the affidavit in garnishment Jaseph on the 11th day of December, 1884, he answered as follows: "For answer to the and said deed and acceptance were duly re- garnishment in this action the defendant corded. (7) The defendant Fitzgerald owned Simeon Jaseph denies that he is indebted to no property but that embraced in the said the defendant Larkin Fitzgerald in any sum mortgage made by him to defendant Fares, whatever, or was so indebted at the date of and has not since that date owned any other the filing of the affidavit of garnishment in property. (8) The said mortgage was made this case, or at any time since that date. and was intended to secure the said Fares in And said Simeon Jaseph further says that he any liability he might have incurred or might had not, at the time said affidavit of garnishincur as surety for said Fitzgerald, including ment was filed, the control or agency of any the note of plaintiffs, herein mentioned; and money of said Larkin Fitzgerald." The other plaintiffs say they are entitled to be substi- defendants suffered default. Issue having tuted to the rights of said Fares in said been joined in the main action, and also in mortgage, and to have the same foreclosed the proceedings in garnishment as between for their benefit. (9) After the execution the plaintiffs and the appellant, the cause and acceptance of said deed of trust from was submitted to the court for trial, with a John C. Fares to the defendant Jaseph, and request, made at the proper time, for a special while suit was pending in favor of the plain- finding. Afterwards the court returned its tiffs against said Fitzgerald in the Hender- special finding, and to the conclusions of law son circuit court in the state of Kentucky as stated therein the appellant excepted. for the foreclosure of said mortgage, and to The appellant then filed a motion for a new subject said mortgaged property to the pay- trial, which the court overruled, and he exment of their said debt, the defendant Jaseph cepted. He then moved the court to arrest took possession of said property, and wrong- the judgment, which was overruled, and an fully removed it from the state of Kentucky, exception reserved, and thereupon the court and now has the same in his possession in rendered judgment in personam against the this county, or has wrongfully sold and con- appellant for the amount found due upon the verted the same to his own use. Said prop-note sued upon. The assignment of error erty was worth six thousand dollars. * * *contains four specifications: (1) The court (11) Plaintiffs pray judgment for their said debt, and that defendant Jaseph be required to account for the value of said property, and that so much thereof as may be necessary be applied to pay the judgment herein." erred in its conclusions of law; (2) the court erred in overruling the motion for a new trial; (3) the court erred in overruling the motion in arrest of judgment; (4) the court erred in rendering judgment against the ap pellant and for the appellees Kronenberger | of the commencement of proceedings in atand Barnett. The fourth specification is covered by the first and second. How far a motion in arrest of judgment searches the record, and whether or not the affidavits in attachment and garnishment will be considered by the court in aid of the complaint as against a motion in arrest of judgment, we do not feel called upon to determine at this time. tachment, including the garnishee proceedings, the appellant had no money in his hands or under his control belonging to Fitzgerald, and was not indebted to him in any sum, it follows from what we have said that the appellees Kronenberger and Barnett were not entitled to a recovery against him. The evidence not only fails to show that the appellant had money in his hands, or under his This leaves for our consideration the first control, belonging to Fitzgerald, but goes and second specifications, which we may con- further, and discloses affirmatively that such sider together. This was an action upon a was not the case; and in this particular the promissory note, not due when the action was special finding of facts as made by the court commenced. Until due, no action to recover and the evidence agree. The facts as found a judgment in personam could be maintained by the court are to the effect that Fitzgerald upon the note. The case of De Haven v. and the appellant conspired together and perCovalt, 83 Ind. 344, cited by appellees' coun-petrated a fraud, and that it was hurtful to sel, is not to the contrary of our conclusion. the creditors; and there is evidence tending The learned commissioner delivering the to support the finding; but the appellant did opinion of the court in that case states expressly that the judgment complained of was erroneous. The error was held to be unavailable in the case he was considering, for the reason that the judgment could not be attacked collaterally, because it was not void. The following cases fully sustain our conclusion: Collins v. Nelson, 81 Ind. 75; Evans v. Thornburg, 77 Ind. 106. But, had the note fallen due before suit, the appellant to pay to or turn over to Fitzgerald_any was not liable thereon. It is now here averred that he ever assumed or bound himself to pay the debt evidenced by the note. If the appellant practiced a fraud, Kronenberger Whether the circumstances, as proven, are and Barnett could not maintain an action such that in a proper action brought at a against him until their debt matured, for un- proper time equity would treat the appellant til then they could not know that the note as a trustee for the benefit of the creditors of would not be paid according to its terms, and Fitzgerald is a question not presented by the therefore could not claim that they were dam-record in this case. This is an action whereaged by the fraud perpetrated. See the two authorities cited above. The One of the reasons assigned for a new trial is that the finding is not sustained by sufficient evidence. The proviso to section 913, Rev. St. 1881, reads thus: "That the plaintiff shall be entitled to an attachment for the causes mentioned in the second, fourth, fifth, and sixth specifications of this section, whether his cause of action be due or not." ground alleged in the affidavit in attachment is covered by the fifth specification. Notwithstanding the length of the complaint and the many averments therein, when we come to consider it in connection with the proceedings in attachment we can only regard it as an ordinary action upon a note. And we must regard it in that connection, for, as we have seen, it discloses no cause of action independent of the attachment proceedings. It is a well-settled rule of this court that it will not look into the evidence contained in the record with a view of determining the weight of evidence as between the parties. It is also a rule equally well settled that the court will look to the evidence for the purpose of ascertaining whether there is an entire absence of proof as to all or any of the facts necessary to be established to entitle the plaintiff to a judgment. If at the time not thereby become indebted to Fitzgerald, nor was there any money placed in his hands or under his control, belonging to Fitzgerald. The transaction, as disclosed, was valid and binding between the parties; and, independent of any rule of law which would intervene and prevent Fitzgerald from holding the appellant to account, the facts disclosed show that he was under no moral obligation money. As appears from the evidence, Fitzgerald sold the mortgaged property to the appellant, and he paid therefor all that he agreed. in the parties must stand upon their legal and not equitable rights. Judgment reversed, with costs, with instructions to grant a new trial. (120 Ind. 390) BEEM V. CHESTNUT. (Supreme Court of Indiana. Oct. 18, 1889.) INTOXICATING LIQUORS-CIVIL DAMAGE LAWS CONTRIBUTORY NEGLIGENCE. In an action by a wife against a liquor dealer for personal injuries received by her from her husband while he was under the influence of intoxicating liquor unlawfully sold to him by the defendant, the complaint need not show that plaintiff was free from contributory negligence. Appeal from circuit court, Lawrence county; E. D. PEARSON, Judge. Dunn & Dunn, for appellant. Simpson B. Lowe, for appellee. MITCHELL, J. This was an action by Fannie Chestnut against Richard E. Beem, to recover damages alleged to have been sustained to her person, property, and means of support, on account of the use by her husband, Hanigan Chestnut, of intoxicating liquors unlawfully sold to him by the defendant. It is averred that the defendant unlawfully sold intoxicating liquors to the plaintiff's husband while he was in a state of intoxica |