the same was passed upon, proceedings were had before the board by which an entry nunc pro tunc was made showing the filing of the motion before the board to dismiss the proceedings, and that entry was certified to the circuit court. The motion to dismiss the proceedings we regard as an appearance, and it raised an issue as to the validity of the election. The efficacy of that issue, or the sufficiency of any of the objections to the election, or as to whether the entire proceed. ings should have been dismissed as prayed, are not questions upon which the trial court could have acted in dismissing the appeal. Such questions should have been tested upon the merits of the objections raised, and not by a dismissal which precluded an inquiry as to the sufficiency of any issue tendered against the legality of the election. Appellants' learned counsel insist that, upon the authority of Railway Co. v. Hood, 130 Ind. 594, 30 N. E. 705, the dismissal reached the correct result, and is not made erroneous by having been reached by a wrong method. That was held upon the theory that the appellants were not harmed. It cannot be said in this case that the appellants were not harmed by the failure of the court to hear their objections to the validity of the election. They were entitled to a hearing, and it could not be said that because they could not have succeeded they could properly be denied a hearing. Issues raised before the board were amendable on appeal and appellants were entitled to a ruling on their motion. Fletcher v. Crist, 139 Ind. 121, 38 N. E. 472; Hardesty v. Hine, 135 Ind. 72, 34 N. E. 701; Stockwell v. Brant, 97 Ind. 474; Burns v. Simmons, 101 Ind. 557, 1 N. E. 52; Green v. Elliott, 86 Ind. 53; Hedrick v. Hedrick, 55 Ind. 78.

Still another reason assigned by the appellees for the dismissal of the appeal by the circuit court was that the appeal bond was insufficient. Pending the motion, the appellants filed, and the court entertained and approved, a new bond. This was proper, and was intended to cure any informality or other objection to the original bond. Rev. St. 1894, § 1307 (Rev. St. 1881, § 1283); Bennett v. Seibert, 10 Ind. App. 369, 35 N. E. 35, 37 N. E. 1071; Graeter v. De Wolf, 112 Ind. 1, 13 N. E. 111. It is said, however, that the new bond was insufficient because it contained no sureties. It was signed alone by the appellants, and did not purport to contain sureties. This, it has been held, is not a compliance with the statute granting appeals, upon filing bond with surety, and is cause for dismissal. McVey v. Heavenridge, 30 Ind. 100. We do not regard section 1235, Rev. St. 1894 (section 1221, Rev. St. 1881), as to the validity of informal bonds as bearing upon the sufficiency of the bond in question. While perhaps true that the trial court should not have approved the bond, and could not consistently have dismissel the appeal for the insufficiency of the

A school township which wrongfully appropriated a portion of the surplus dog fund through a judicial misinterpretation of Burns' Rev. St. 1894, § 8654 (Horner's Rev. St. 1897, § 2651h), providing for the distribution of such fund, acquired no vested rights therein which were involved by the overruling of such erroneous decision.

Appeal from circuit court, Grant county; J. L. Custer, Judge.

Action by the state, on relation of Marion school city and others, against Center school township of Marion county. From a judg

ment in favor of plaintiff, defendant appeals. Affirmed.

Elliott & Elliott, for appellant. Carroll & Dean, for appellee.

ROBINSON, J. Appellee seeks to recover from appellant its pro rata share of the surplus dog fund, over $50, in the hands of appellant, in March of the years 1892, 1893, 1894, and 1895. It is charged in the complaint that, on the first Mondays of March in each of said years, the surplus dog fund over $50 in the hands of appellant was for 1892 $262.22, for 1893 $451.84, for 1894 $99.82, and for 1895 $185.20; that a portion of said sum should have been distributed to appellee in proportion to its enumeration for school purposes; that appellant failed and refused to distribute any of said funds to appellee, but, on the contrary, expended all of said funds for the benefit of the schools of appellant; and that no part was received by appellee. Center school township nied a demurrer to the complaint, which was overruled; and, refusing to plead further, judgment was rendered in appellee's favor for $1,101.75. This ruling is the only question presented.

Section 8654, Burns' Rev. St. 1894 (section 2651h, Horners' Rev. St. 1897), provides that the revenue received from the tax on dogs shall be a fund for the payment of damages for sheep killed or maimed by dogs, and also provides "that when it shall so happen on the first Monday of March in each year, in any township, that the said sum shall accumulate to an amount exceeding fifty dollars over and above orders drawn against the same, then the surplus over said sum of fifty dollars shall be expended by such trustee for the use of the school revenue of the township." In Taggart v. State, 142 Ind.

668, 40 N. E. 260, and 42 N. E, 352, it is held that by this proviso the township trustee is required to turn over to each school corporation within his township its pro rata share of such surplus in proportion to the enumeration of such school corporation. It is argued by counsel for appellant that the complaint does not show that there is any money or fund on hand with which to pay such claim, but that it appears that the same had been expended by the trustee; that, at the times complained of, it was the law, as declared by the supreme court, that no part of said fund belonged to appellee; and that a more recent decision of the supreme court, made since the acts complained of, cannot be given a retrospective effect, so as to make such use of such fund wrongful. These questions have been decided by the supreme court adversely to the position maintained by counsel for appellant in this case, in the recent case of Center School Tp. v. State (Ind. Sup.) 49 N. E. 961. Upon the authority of that case, the judgment in the case at bar must be affirmed. Center School Tp. v. State (Ind. App.) 50 N. E. 591. Judgment affirmed.

(20 Ind. App. 668)

NORRIS v. CHURCHILL,1 (Appellate Court of Indiana, June 28, 1898.) CONTRIBUTION BETWEEN JOINT MAKERS OF A NOTE -NEW TRIAL.

1. Plaintiff and defendant and three others borrowed money from a bank on their joint note to pay the price of a horse purchased in common, each agreeing to pay his ratable share thereof. Defendant paid his share, and the others executed a new joint note for the balance, on which judgment was obtained against them, two of whom were insolvent. Plaintiff was compelled to pay, in addition to his own share of the judgment, the shares of the insolvents. Held, that defendant was liable to contribute his ratable share of the amount paid by plaintiff in excess of his share of the debt.

2. Assessment of excessive damages as a cause for a new trial applies only in actions of tort. Appeal from circuit court, Rush county; John D. Miller, Judge.

Action by William Churchill against Benjamin F. Norris. From a judgment for plaintiff, defendant appeals. Affirmed.

Cullen, Martin & Magee, for appellant. Smith, Cambern & Smith, for appellee.

BLACK, J. The appellee sued the appellant for contribution. They, with three others, jointly purchased a horse, each of the five purchasers paying one-sixth part of the price. The remaining one-sixth part of the purchase money they borrowed from a bank upon their joint promissory note payable at said bank upon demand. The appellant, without the knowledge or consent of the appellee, paid to the bank the one-fifth part of the amount of the note in cash. The other makers thereof, on the same day, gave their Joint promissory note, negotiable by the law merchant, to the bank for the balance, being four-fifths of the amount of the debt, the ap1 Rehearing denied.

pellant not joining with the other makers in the execution of the latter note. Prior to the appellant's said payment of a part of the debt, two of the makers of the original note, Joseph T. Johnson and Owen Kincaid, had become insolvent, and they so continued thereafter. When the second note became due the makers thereof renewed it, and upon this third note the bank sued and recovered judgment thereon against the makers thereof. The appellee paid the judgment by giving his note, negotiable by the law merchant, to the bank, and the bank assigned the judgment to the appellee. The appellee thus paid all the original debt except the one-fifth part thereof so paid by the appellant. The five makers of the original note owned equal interests in the horse. When the makers of the original note borrowed the money for which it was given, they agreed between themselves that each should pay one-fifth of the amount borrowed.

The questions saved and presented in this court may be disposed of by deciding whether, upon such a state of facts, the appellee was entitled to contribution from the appellant.

It is contended, in effect, that as the appellant paid in cash his agreed share of the original note, and as the balance thereof was paid to the bank by the promissory note, negotiable by the law merchant, of the other makers of the original note, the appellee could not acquire the right to contribution from the appellant by the appellee's final compulsory payment of the balance of the debt represented by the renewed promissory note, negotiable by the law merchant, given by the makers of the original note other than the appellant. Each of the makers of the joint obligation was principal as to his part, and co-surety for the others as to their respective parts. Goodall v. Wentworth, 20 Me. 322; Bragg v. Patterson, 85 Ala. 233, 4 South. 716. The right to contribution originated in equity, and is based upon natural justice. It applies to any relation, including that of joint contractors, where equity between the parties is equality of burden, and one of them discharges more than his share of the common obligation. Bragg v. Patterson, supra; Aspinwall v. Sacchi, 57 N. Y. 331; Sexton v. Sexton, 35 Ind. 88. Where a number of persons borrowed a sum jointly, but received different portions for their several uses, and one of the borrowers became insolvent, it was held that the others should contribute to pay his share in proportion to the amount received by each. Kincaid v. Hocker, 7 J. J. Marsh. 333. In the case at bar the makers of the original joint note derived benefit equally from the proceeds of that note. When there is an entire debt owed equally by several, the solvent debtors must share equally in any burden thrown upon them by the insolvency of a part of their number. North v. Brace, 30 Conn. 60, 72. Sureties who are insolvent are

to be excluded in determining the proportions. See Newton v. Pence, 10 Ind. App. 672, 38 N. E. 484; Michael v. Allbright, 126 Ind. 172, 25 N. E. 902.

The agreement between the joint makers of the note that, as between themselves, they were to be bound to discharge the common obligation to the payee equally, each paying his equal share, would not relieve any one of them who had paid his ratable share from the equitable obligation to contribute to another of the joint makers who was compelled to pay more than his ratable share. Such a contract or understanding between the joint makers would not create a relation between them different from that which would exist by law by reason of the makers being bound by a common obligation; for, in such case, there is an implied contract that each will pay and discharge the common obligation equally. The obligation to make contribution is based upon an implied contract which exists from the date of the creation of the relation between the parties. The right is inchoate from that date. It becomes complete upon payment, but it relates back to the time the relation commenced out of which the right springs. Nally v. Long, 56 Md. 567; Bragg v. Patterson, supra; Sexton v. Sexton, supra. It is no defense to an action for contribution that the defendant has been released by the original creditor. Clapp v. Rice, 15 Gray, 557. The appellant had not performed his implied contract arising at the original creation of the joint debt. The suit for contribution was not based upon any note or judgment, but was founded upon that implied contract. Equity looks through mere forms to find the natural justice of the whole transaction. Two of the five original joint debtors being insolvent, and the appellee having been compelled to pay, in addition to his own share, the shares of these two insolvents, equity, which is equality, demanded that the debtors who were not insolvent should equally bear the burden of the shares of the insolvents so paid; that the appellant should reimburse the appellee to the extent of one-third of the amount which the latter has thus been compelled to pay in excess of his ratable share of the joint debt.

Counsel for appellee have suggested that no question as to the amount of the recovery was saved by the motion for a new trial, wherein it was assigned as cause that "the damages assessed by the court are excessive," which is the fourth statutory cause, and can be properly assigned only in cases of tort. This suggestion is supported by decisions. Railroad Co. v. Acres, 108 Ind. 548, 9 N. E. 453; Thomas v. Merry, 113 Ind. 83, 91, 15 N. E. 244; Western Assur. Co. v. Studebaker Bros. Mfg. Co., 124 Ind. 176, 182, 23 N. E. 1138. The judgment is affirmed.

HENLEY, C. J., took no part in the consideration or decision of this cause.

HAAS v. CITY OF EVANSVILLE. (Appellate Court of Indiana. June 28, 1898.) APPEAL-REHEARING-NEW QUESTIONS.

1. After decision on the merits, a constitutional question cannot be raised on petition for rehearing for the purpose of having the cause transferred to the supreme court.

2. Questions not urged in argument will not be considered after a rehearing has been granted on other grounds.

On motion to transfer cause to the supreme court and for rehearing. Denied.

For former report, see 50 N. E. 46.

PER CURIAM. Counsel for appellant strenuously reargue the questions decided in the principal opinion. Nothing whatever is presented in the petition for a rehearing that was not fully considered by the court on the original hearing. We have again carefully considered all the questions raised by the petition, and there is nothing said in support of the petition calling for special notice. Counsel have presented no reason or authority, and we know of none, why the affirmance of the judgment rendered by the trial court should not stand. We are content with the original opinion, and adhere to the law of the case as therein declared on every material point. A motion is also presented and argued at length to transfer the case to the supreme court on the ground that a constitutional question is involved. No such question was presented, or even suggested, in the briefs on the original hearing. After a case has been argued and decided solely upon the merits, a constitutional question cannot be raised upon a petition for a rehearing for the purpose of having the case transferred to the supreme court. It is a very familiar rule that new questions will not be considered by the appellate tribunal on petition for rehearing. And it has also been held that questions not urged in argument before the decision in the cause will not be considered after a rehearing has been granted on other grounds. Wasson v. Bank, 107 Ind. 206, 8 N. E. 97; Danenhoffer v. State, 79 Ind. 75; Emerson v. Opp, 9 Ind. App. 581, 34 N. E. 840, and 37 N. E. 24; Johnson v. Jones, 79 Ind. 141, and cases cited; Railway Co. v. Hicks, 11 Ind. App. 588, 37 N. E. 43, and 39 N. E. 767. The petition for a rehearing and the motion to transfer are overruled.

(20 Ind. App. 491) PENINSULAR STOVE CO. v. ELLIS et al. (Appellate Court of Indiana. June 28, 1898.) REPLEVIN JUDGMENTS-SALES-FRAUD OF BUYER

-SUBSEQUENT MORTGAGEES-ASSIGN-
MENTS FOR CREDITORS.

1. A judgment for plaintiff in replevin is not warranted, where it does not appear that defendant is in possession of the goods or claiming title thereto.

2. Where an insolvent purchased goods through fraud, and mortgaged them to persons who had no notice of his fraud, for a valuable

consideration, before disaffirmance by the seller, the mortgagees acquired a good title.

3. A judgment cannot be rendered against defendant on a count to which his demurrer has been sustained.

4. Where an insolvent purchased goods through fraud, the seller could recover against him and his assignee for the benefit of creditors for conversion, the assignee not being an, innocent purchaser for value as against the seller.

5. A purchase of goods by one unable to, and not intending to, pay for them, constitutes a fraud entitling the seller to avoid the sale.

Appeal from circuit court, Steuben county; W. L. Penfield, Judge.

Action by the Peninsular Stove Company against Clark B. Ellis, as assignee of one Snyder, and others. There was a special verdict, on which judgment was entered in favor of plaintiff against defendant Snyder, and in favor of defendants Russell, Croxton, and Wickwire. From the judgment, and from an order denying a motion to modify plaintiff's judgment so as to make the same in its favor as against defendants Croxton, Russell, and Wickwire, it appeals. Reversed. Sol. A. Wood, for appellant. Brown & Davis and Croxton & Powers, for appellees.

COMSTOCK, J. The complaint is in two paragraphs: The first in replevin; the second for conversion. The cause was put at issue, submitted to a jury, and, upon proper request, a special verdict returned.

No question is presented on the pleadings. On the special verdict the court rendered judgment in favor of plaintiff against appellee Snyder for the possession of the property, and overruled its motions as against the other appellees, and rendered judgment in favor of defendants Russell, Croxton, and Wickwire for the return of the property, or, upon failure of plaintiff to return the property, judgment for $231, the amount found by the jury to be the value thereof, and that they recover of the plaintiff their costs. Plaintiff moved to modify the judgment so as to make the same in its favor as against Croxton, Russell, and Wickwire, and for all costs in the cause, which motion the court overruled.

The assignment of errors challenges the action of the court in overruling the motion for judgment against the several appellees, and its motion to modify the judgment, and in rendering judgment in favor of appellees on the special verdict. The special verdict shows that appellee, at the time of ordering the goods in controversy, was, and had been for years, in business as a retail dealer in stoves and hardware; that on the 9th of April, 1894, he ordered the goods of plaintiff's agent for the purpose of selling them at retail; that they were delivered August 15th, and placed in his store as a part of his stock. On September 3, 1894, appellees Russell, Croxton, and Wickwire being among his bona fide creditors to the amount of $2,999.03, he executed to them a chattel mortgage upon his merchandise, including stoves

purchased and received of plaintiffs, to secure said indebtedness, which was evidenced by promissory notes. When defendant Sny. der purchased the goods of plaintiff, he was insolvent, and was not able and intended not to pay for them. On September 5th he made a deed of assignment, conveying all his property to appellee Ellis, assignee, for the benefit of his creditors. Ellis, assignee, was afterwards succeeded by Gates, appellee, as assignee. Snyder's indebtedness, aside from that provided for by said mortgage, was $8,576.29. At the time said appellees Russell, Croxton, and Wickwire received said mortgage they had no knowledge or notice that said Snyder had purchased said goods with the fraudulent intent of not paying for them. Plaintiff's agent demanded of each of the defendants the goods in controversy before the commencement of this suit. It does not appear from the special verdict that there was any disaffirmance of the sale or any claim of fraud made prior to the execution of the mortgage and the deed of assignment.

By his deed of assignment for the benefit of his creditors Snyder had devested himself of all title to the property: He was not, at the time of the commencement of this action, in possession thereof, nor claiming title thereto, nor were either of the appellees, nor were they or either of them, detaining the same, so far as appears from the special verdict, and in a special verdict nothing is taken by intendment. A judgment in favor of appellant in replevin would not, therefore, have been warranted by the findings of the jury. It remains to be determined whether it was entitled to judgment for conversion.

Benjamin on Principles of Sales, at page 107, states the following to be the rule of law applicable to fraudulent sales: "When a person obtains possession of goods with the intention by the owner to transfer to him both the property and possession, although the buyer has made a false and fraudulent representation in order to effect the contract or obtain the possession, the property vests in him as buyer, without the defrauded owner has done some act to disaffirm the transaction; and the legal consequence is that if, before the disaffirmance, the fraudulent buyer has transferred either the whole or a partial interest in the goods to an innocent transferee for value, the title of said transferee is good against the defrauded owner." See authorities cited on the same page. In Thompson v. Peck, 115 Ind. 516, 18 N. E. 16, our supreme court, by Mitchell, J., said: "It is well settled that, even though a sale of property be induced by fraud, the contract is not void, but only voidable. The title to the property passes to the fraudulent vendee, subject to the right of the vendor. upon discovering the fraud, to elect whether he will rescind the contract by returning, or offering to return, whatever of value he may