each of the cases cited the credit was not extended to the old partnership, but to those remaining after the dissolution. So in this case no credit was extended to Weathers and Case by the relator, and the relator looked only to Case for payment. Under such circumstances we do not see how appellant can be bound for the debts so incurred by Case on his own individual credit. [9] Appellant has, by divers proper assignments of error, presented the question of the legal effect, if any, of the action of said board of commissioners in making and entering the order purporting to release the bond given by Bankers' Surety Company. As shown by the record, on November 6, 1911, the board of commissioners entered into the contract with Weathers and Case for the construction of the road in question, and at the same time approved a construction bond, tendered by said Weathers

contract, and, in passing upon the matter, the court said:

"Considered with respect to their corporate powers, counties rank low down in the scale of corporate existence, and are frequently termed quasi corporations," (Citing authorities).

The court also quoted from 5745, R. S. 1881, 7830, R. S. 1894 (5985, Burns' 1914), which provides that the board:

"Shall have power at their meetings to make orders respecting the property of the county according to law; to sell the public grounds of the county upon which the public buildings are situate, and to purchase in lieu thereof, in the name of the county, other grounds in the county seat on which such buildings shall be erected; to purchase other lands for the enof and preserve such property." largement of the public square; and take care

And in conclusion said:

and Case, in which they were the principles "We think it clear, both upon principle and and the Bankers' Surety Company was sure-authority, that the boards of commissioners in ty thereon. Thereafter, on January 2, 1912, this state have no power to rent the courtthe said Weathers and Case tendered to house, or any part of it, for private use. said board another bond, covering the construction of said road, in which they were named as principals, and the appellant herein the surety thereon, which bond the board then and there approved, and also caused to be entered in their record of proceedings

the following:

"And the board being duly advised in the premises approves said bond, and the bond

heretofore executed by the Bankers' Surety Company is now canceled and surrendered."

In 7 R. C. L. 936, it is said:

"Counties, being created for purposes of government, and authorized to exercise to a limited extent a portion of the power of the state government, have always been held to act strictly within the powers granted by the legislative act establishing them; accordingly, the statute is to them their fundamental law, and their power is only coextensive with the power thereby expressly granted, or necessarily or reasonably implied from its granted powers."

The decision was based upon the fact that there was no statute which authorized such action by such board.

142 Ill. 528, 32 N. E. 493, 18 L. R. A. 447,

In the case of Millikin v. Edgar County,

the board of commissioners had made a contract with a named person to keep and period of three years. In passing upon the care for the poorhouse and inmates for a

validity of the said contract the court said:

"Counties are political divisions of the state, created for governmental purposes. They possess such powers as have been conferred by the Constitution and legislative department of the state. These powers are of a public nature, conferred merely for public purposes, and they should be exercised in such a manner as will best promote the interests and advance the welfare of the people."

Said contract was held void for want of

authority in the board to make the same.
In the case of Hight v. Board, 68 Ind.

In Board v. Bradford, 72 Ind. 455, 37 Am. 575, the board of commissioners of Lawrence Rep. 174, it was said:

"The board of commissioners of a county is a creature of the statute, and is vested with, and possessed of, just such powers, rights, privileges, and franchises, corporate, judicial, legislative, and ministerial, as the statute has conferred upon it, and such as are clearly and necessarily implied, to enable it to carry out and accomplish the objects and purposes of its creation."

In State ex rel. v. Hart, 144 Ind. 107, 43 N. E. 7, 33 L. R. A. 118, the commissioners of La Porte county had leased certain rooms in the courthouse to be used for private business. Suit was brought calling in question

county had made a contract with Hight, under which he was to assist the officers of said

county in getting evidence, etc., and in prosecuting certain persons charged with murder. In holding the contract void the court said:

"It [the board] will be confined in making contracts to the powers expressly granted to it by the act of its creation, and to the implied powers incidental and necessary to the execution of such expressed powers and the performance of the duties enjoined upon it."

In the case of Hickerson v. Price, 2 Heisk. (49 Tenn.) 623, Price, clerk and master in chancery, went before the chancellor and asked leave to give a new bond. Leave was

(146 N.E.)

the court, and ordered to be spread upon the minutes; this was done, but no order was made concerning the release of the sureties upon the former bond. Later the sureties, upon the former bond, petitioned the court to be discharged from said bond and for the entry of a formal decree showing their discharge from liability on such bond. The chancellor to whom the petition was presented seems to have been of the opinion that the entry of the approval of the second bond was sufficient, that no formal discharge was necessary, and declined to make any further order. An appeal was taken, and, in passing upon the matter, the Supreme Court said:

"Proceedings, under our statutes, for the release of sureties upon official bonds, are summary in their character, and are not to be extended by construction, so as to embrace cases not provided for by statute.

* *

The statute of Tennessee provided that a new bond might be required of an officer upon application of any of his sureties, but in this case the application was not by a surety to be relieved, but by the principal, for leave to execute a new bond. As to this phase of the matter the court said:

"The proper construction of this section is, that the application of the sureties is to be made by them to the court; and this being a summary proceeding, every fact necessary, under the statutes, to confer jurisdiction upon the court, should be recited in the decree or judgment accepting the new and exonerating the original sureties."

In speaking of the action of the chancellor in accepting such new bond the court said: "The statutes nowhere confer authority upon the chancellor to take new bond and security in such a case."

*

"The only question presented for our decision is whether the board of commissioners had the power to release the plaintiff from any and all liability on the bond that might have arisen If it had not the power to do so, the plaintiff is entitled to after the date of the release. recover the amount of the premium. * * "The board of commissioners in the several counties possess only those powers which have been prescribed by statute and those necessarily implied by law, and no others. We know of no provision by statute for the release of sureties on the bonds of public officers. The power therefore to release does not exist unless it can be implied from those powers which are conferred by law. The commissioners are authorized and required to qualify and induct into office the several officers of the county, and to take and approve their official bonds, which they shall cause to be registered. * The sole power given by statute is to take and approve official bonds and any renewals thereof, and, when this is done, the commissioners have fully performed their duty and completely exhausted the power conferred.

* *

"If it be suggested that this power to release should be implied from the power to receive and approve the bond, and to sue upon it if there should be a default, the sufficient answer is that the bond does not belong to them, nor is it made payable to them, and all that is prescribed for them in connection with it by the statute is merely the duty of protecting the interests of the public for whom the bond is given. They are not even trustees of those for whose benefit the bond is taken, and really have no more interest in it than the judge or clerk of a court who passes upon and approves a bond taken in an action pending therein. *

In the case of Sullivan v. State, 121 Ind. 342, 23 N. E. 150, Sullivan, as county clerk, had given bond with four persons thereon as sureties, which bond had been duly approved. Afterwards, one of the sureties became dissatisfied, and Sullivan and the remaining sureties, instead of executing a new bond in the manner authorized by statute, entered into an agreement in writing that the one surety who was dissatisfied should be released, and that they, the other sureties on said bond, should be the only sureties thereon after a certain named day. The surety who desired to be released and Sullivan, the principal, thereupon went before the board of commissioners of Marion county and pre

In the case of Fidelity, etc., Co. v. Fleming, 132 N. C. 332, 43 S. E. 899, the said company had become surety upon the bond of Fleming as sheriff, and he had agreed to pay it a stipulated annual premium therefor so long as he remained in office "unless said [Fleming] should notify [the company] of his desire to cancel the same and have [the company] legally released from all liability as such surety upon said bond during said term of office." After the above bond had been executed and became fully effective the sheriff went before the board of commission-sented to said board the matter of accepting ers of his county and presented a new bond, which was approved by the board, and, as to the former bond, an order was entered of record that the surety thereon, "be and it is hereby released from any and all liability that may arise or occur after this date." The surety company brought suit to recover an annual premium falling due subsequent to the date of the above order. In passing upon the validity of said order the court said:

the new bond, and the board of commissioners of Marion county entered of record an order accepting the bond offered and releasing the one surety from all further liability upon the old bond. Afterwards suit was brought against Sullivan and all of his bondsmen for loss of funds upon the bond as originally given, and Burton, the surety whom the county board had ordered released, pleaded such release. In passing upon the matter in question the court said:

"The conclusion we reach is that the board] of commissioners are only empowered to accept the original bonds of the officers, and have no authority to accept new bonds whereby sureties on the original bonds are released, and that the proceedings had before the board of commissioners for the release of Burton are without authority and void, and did not release the defendant Burton from liability on the bond."

In this state we find statutory authority for the board of commissioners to "approve" the bond given by a contractor at the time he enters into his contract with the board of commissioners for the doing of the work in question, to be done under the contract so executed; authority to approve what we may call the contractor's "initial" bond, but we find no authority delegated to said board, either directly or by necessary implication, which would authorize such board to release the surety or sureties on such bond after the same had been once approved.

When we examine the question now before us, independent of authority, we should keep in mind the character of the persons for whose protection such bonds are given, and we should also remember that they are not present before the board of commissioners and have no voice in the matter or business to be transacted, even though they are, or may become, the real beneficiaries of the bond so given. The board of commissioners, in the matter of taking and approving of contractor's bonds, is acting to safeguard the interests of others not before the board, and it seems to us that their rights and powers in these matters should not be extended by less than "necessary implication."

In the case of American, etc., Co. v. Hall, 57 Ind. App. 523, 106 N. E. 534, it was said: "Some of these cases carry the principle further than others, but they are all in accord in holding that a court has no power to release the sureties on a bond except it be done in accordance with the provisions of a statute conferring such power. Unless so released, a bond once approved remains operative as a security until its conditions are performed, or its penalty exhausted or until barred by statute of limitations. A court may require additional bonds whenever necessary for the protection of the trust estate, but, upon the giving of a new bond, the court has no power to release a bond previously given unless the action is taken pursuant to a statute and in conformity to its terms."

We therefore hold that the action of the said board of commissioners, in attempting to release the said Bankers' Surety Company

from all further liability, as surety, on the bond in suit, was without authority of law and of no effect. Any action or rulings of the court not in harmony with the foregoing

was error.

[10] Over the objection of appellant the relator was permitted to introduce in evidence a large number of checks totaling more than $700. It was the claim of the relator that these checks were issued in payment for labor and material used in the construction of the highway that was under contract, but there was nothing in the face of these checks that so indicated nor was there any evidence to that effect-in fact if we

were to draw our conclusion from their face it would be that they were not issued for the purpose of paying for labor or material used in the road. Even if appellant were otherwise liable for the reimbursement of the relator for the money paid on these checks, it was certainly not liable unless and until it appeared that the checks were issued for some debt incurred in the construction of a road. The checks should have been identified as being in some way connected with the expense of building the road before they were admitted in evidence. What has been said with reference to these checks is equally true with reference to all payments made by relator. Even though appellant was otherwise liable it should have been shown that such payments were made for the construction of the road involved.

[11] Carbon copies of certain letters and other instruments were admitted in evidence, over the objection of appellant, without first building a foundation for such secondary evidence in the place of the original. This was error, and we may add that if the original document is in the hands of the person offering the secondary evidence, such original must be produced, or, if not, it must be accounted for, and, it must be shown that it cannot be produced before the secondary evidence can be received. This rule is so well established that we do not need to cite authorities. Numerous other questions are presented in appellant's 134 points, including alleged errors as to the court's ruling in giving or refusing to give instructions and as to the admissibility of evidence. We have however, considered and disposed of only such questions as are likely to arise on another trial of the cause.

The judgment is reversed, with instructions to the court to grant a new trial and for further proceedings in harmony with this opinion.

(146 N.E.)

MCMAHAN, J. Action by appellant against appellees for partition of certain real estate, which appellant contends is owned by him and appellee Effie B. Helvie as tenants in common. From a judgment sustaining a demurrer to the complaint, appellant appeals.

The complaint alleges that George A. Helvie, who died in 1894, by his will executed in 1893 and probated in March, 1894, directed his administrator "to take and pay out $1, 000 for real estate" for his son George F. Helvie, and to "take the deed in his name and his wife name jointly his natural life time and in the event of his death leaving children one-half shall go to his wife and one-half go to his children and if there is no

497 (1)-Words "child" and "chil- children one-half goes to C. W. Casper."

Appellant contends that the word "chil dren," as used by the testator in his will, and as carried into the deed, must be conAppeal from Circuit Court, Delaware strued as meaning children born to George County; W. C. Pentecost, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

appellee Jessie, being an adopted child, is not the owner of any part of the real estate involved. Appellees contend that appellee Jessie by virtue of the adoption became the child of her adopted parent George F. Helvie to all intent and purpose the same as if she was a natural born child, and that the testator must be presumed to have used the word "children" as meaning children by adoption as well as by birth.

All parties agree that the intention of the testator must control. Appellant refers to the fact that appellee Jessie was not born until long after the death of the testator, and was not adopted until after the execution of the deed, and says it is clear the testator could not have intended to include her in the term "children," and that the fact that she is not of common blood with the testator is also an important fact in determining the intention of the testator.

There is no question but what appellee Effie is the owner of a one-half interest in the real estate in question. The controversy is between appellant and appellee Jessie, and in our discussion of the questions involved we shall refer to her and treat her as if she were the only appellee.

Section 870, Burns' 1914 (Acts 1883, p. 61), provides that a child after adoption shall "be entitled to and receive all the rights and interest in the estate of such adopting father or mother, by descent or otherwise, that such child would if the natural heir of such adopting father or mother." This is followed by a provision to the effect that, if an adopted child dies without leaving a husband or wife, or issue, seized or owning any property by gift, devise or descent from the adopting parent, such property shall descend to the heirs of the adopting parents. Section 871, Burns' 1914 (Acts 1855, p. 122), provides that

"After the adoption of such child, such adopted father or mother shall occupy the same position towards such child that he or she would if the natural father or mother, and be liable for the maintenance, education and every other way responsible as a natural father or mother." Appellee cites Markover v. Krauss, 132 Ind. 294, 31 N. E. 1047, 17 L. R. A. 806; Humphries v. Davis, 100 Ind. 274, 50 Am. Rep. 788, and several other cases decided by our Supreme Court before the execution of the will now under consideration, and says that by those decisions the court had fixed the status of adopted children and placed them in the position of children born to the adopting parent, and gave the word "children" as used in the statute a well-settled meaning, meaning both natural and adopted children, and that it must be presumed the testator used the word "children" as including adopted children. The questions before the court in each of the cases cited related to the

The

the adopting parent, the right of the adoptive
parent to inherit from the adopted child, or
the right of the natural mother or a blood
relative of the adopted child to inherit the
property of such child which came to it
through the adoptive parent. None of them
related to the right of an adopted child to
take through a will of a third party.
cases cited are clearly distinguishable from
the one now before us, and are not in point.
We are not concerned with a question of in-
heritance. Neither are we called upon to
construe the statute concerning the adoption
of children. We are interested in ascer-
taining the intention of George A. Helvie
when he made his will and in giving effect
to that intention when ascertained.

Appellee cites and relies upon Bray v. Miles, 23 Ind. App. 432, 54 N. E. 446, 55 N. E. 510, in support of the contention that the testator by using the word "children" 'presumably intended to include adopted chil dren. Appellee says, if the testator had desired to exclude an adopted child of George F. Helvie, he should have done so by the use of the expression, "children of his body," "children of his blood," "to his issue," or some similar expression. In the Bray Case the adoption took place prior to the death of the testator, while in the instant case the adoption did not take place until more than 14 years after the death of the testator, and it is alleged in the complaint and admitted by the demurrer that the testator had no knowledge that his son George F. was contemplating the adoption of a child. In this connection appellee says that, "in the absence of a statute specifically and definitely fixing the status of an adopted child or children, like the statute of Indiana fixed it, the word 'child' or 'children' usually includes an adopted child." If appellee were claiming the property through a will of her adopted parent, there would be some merit in her contention. But that is not this case. It is true, as stated by appellee, that the rule is stated in 5 Am. and Eng. Ency. of Law, p. 1098, as follows: "The terms 'child' or 'children' usually include an adopted child," and that the author cites Power v. Hafley, 85 Ky. 671, 4 S. W. 683; Stanley v. Chandler, 53 Vt. 624; and Keegan v. Geraghty, 101 Ill. 26, in support of the statement. This court in Bray v. Miles, supra, unfortunately, and it seems without investigating the authorities, adopted and accepted the above statement in the Encyclopedia of Law as a correct statement of the law.

In Power v. Hafley, supra, the court held that the word "children" is not "necessarily confined to children born in lawful wedlock," and that the word may include children born in lawful wedlock, children made legitimate by the marriage of their parents, and children by adoption.