was not converted into income but continued to constitute a part of the principal. Pope v. Farnsworth, 146 Mass. 339, 16 N. E. 262; Preble v. Greenleaf, 180 Mass. 79, 61 N. E. 808. tends that "the termination of the trust ac- | effected, and his share having vested in the cording to its terms has been thwarted by the surviving beneficiaries as his heirs at law failure of the trustees to realize upon security belonging to the sinking fund, to wit, the assigned interest of John J. Rayner in the estate," and "that after his assignment a proper administration of the trust would have annually turned into the sinking fund John J. Rayner's income therefrom." Having been one of the original trustees, he appropriated while in office an appreciable part of the income, and pledged his share to replace the deficiency. But an examination of the instrument executed by him in connection with the conditions leading to the pledge, and the subsequent release of the accrued interest leaves no doubt as to the intention of the parties. The purpose was to protect the other beneficiaries from the loss which would ensue upon alienation by him of his share of the estate, and that either by will or upon intestacy his interest which was more than sufficient to repay the indebtedness should pass to them. John J. Rayner having died intestate, without issue, and his widow, who has since deceased, in consideration of an annuity for life having released her rights, the result desired was [4] It moreover having been thus treated by the trustees in their probate accounts with the assent in writing of the beneficiaries from whom she derives title, and of the mortgagees, for at least 25 years, the decrees passing and confirming their ac counts, as well as the probate accounts of J. Rayner Edmands, who acted as one of the trustees presented by his executor, to which the parties did not assent but from which no appeal appears to have been taken, are conclusive and cannot be set aside or modified in these proceedings. Bennett V. Pierce, 188 Mass. 186, 74 N. E. 360; Connors v. Cunard Steamship Co., 204 Mass. 310, 90 N. E. 601, 26 L. R. A. (N. S.) 171, 134 Am. St. Rep. 662. The details and terms of the decree in each case are to be settled before a single justice. Sears v. Hardy, 120 Mass. 524, 542. Decree accordingly. LIPSCHITZ ▼. STATE. (No. 22,006.) (Supreme Court of Indiana. Jan. 5, 1912.) 1. INDICTMENT AND INFORMATION (§ 110*) SUFFICIENCY-STATUTE. In view of Burns' Ann. St. 1908, § 2062, cl. 5, providing that it is only necessary to state an offense in an indictment or affidavit with such a degree of certainty that the court may pronounce judgment, no greater degree of certainty is required than in civil pleadings, and an affidavit or indictment charging a violation in the terms of the statute creating the offense is sufficient. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 289–294; Dec. Dig. § 110.*] weighing or measuring any property, who one hundred dollars." The affidavit is as- 2. WEIGHTS AND MEASURES (§ 10*)-CRIMINAL PROSECUTION-STATUTES. Under Burns' Ann. St. 1908, § 2606, pro-gree of certainty that the court may providing that any person owning or having charge of scales for the purpose of weighing or measuring property who knowingly reports any false weight or measure, whereby any person may be defrauded or injured, shall on conviction be fined, the false report of a weight which may result in an injury is a completed offense, even though the injury does not occur. [Ed. Note.-For other cases, see Weights and Measures, Cent. Dig. § 12; Dec. Dig. § 10.*1 3. WEIGHTS AND MEASURES (§ 12*)-CRIMI-39 N. E. 768; Nichols v. State, 28 Ind. App. NAL PROSECUTIONS EVIDENCE SUFFI CIENCY. In a prosecution under Burns' Ann. St. 1908, § 2606, for fraudulently reporting an incorrect weight, evidence held to sustain a conviction. [Ed. Note.-For other cases, see Weights and Measures, Cent. Dig. § 14; Dec. Dig. § 12.*] nounce judgment, upon a conviction, according to the right of the case. Burns 1908, § 2062, cl. 5. No greater certainty is required than in civil pleadings. McCool v. State, 23 Ind. 127; State v. Sarlls, 135 Ind. 195, 34 N. E. 1129; Lane v. State, 151 Ind. 511, 51 N. E. 1056; Brunaugh v. State, 173 Ind. 483, 90 N. E. 1019; Lay v. State, 12 Ind. App. 362, 674, 63 N. E. 783. It has been held that an affidavit charging a violation of this section, which stated the offense in the language of the statute, was sufficient. Zinns v. State, 13 Ind. App. 396, 41 N. E. 833. Under these rules, the affidavit under consideration must be held sufficient. To support the second assignment of error, Appeal from Criminal Court, Marion Coun- it is insisted by counsel for appellant that ty; Joseph T. Markey, Judge. Moses Lipschitz was, in the City Court of Indianapolis, convicted of knowingly reporting a false and untrue weight, and appealed to the Criminal Court, where he was again convicted, and he appeals. Affirmed. Frank C. Groninger and Taylor E. Groninger, for appellant. Thomas M. Honan, Thos. H. Branaman, Edwin Corr, and James E. McCullough, for the State. the finding of the trial court is contrary to law and not supported by sufficient evidence. The evidence, as favorable to appellant as it may be stated, shows that appellant, at the time of the alleged commission of the offense, was a junk dealer, with his place of business in the city of Indianapolis. One Sarah Tinder worked for him, ripping up old clothes and separating the cotton from the woolen goods at fixed prices per hundred pounds for the woolen goods, and by arrangement with appellant she had her COX, J. Appellant was prosecuted by affidavit in the city court of the city of In-blind husband to work with her; by the dianapolis for knowingly reporting a false and untrue weight, in violation of section 2606, Burns 1908. From a conviction in that court, he appealed to the criminal court of Marion county, was tried by the judge, and was again convicted and fined in the sum of $50. From the judgment of the criminal court, appellant appeals, and here contends that the trial court erred in overruling his motion to quash the affidavit on which his conviction rests and in overruling his motion for a new trial. custom of their dealing, the rags were assorted, placed in sacks, and weighed at the end of each week and the woman was then paid, at the rate for which the work was done, for the weight of material she and her husband had finished during the week. On the day of the alleged offense, appellant, when the woman went to him at the customary time for her pay and asked him to weigh their work, told her he had weighed it before her arrival, and that it amounted to 730 pounds. He kept scales there for that purpose, and the sacks containing the work were still there. She asked him why he had weighed her work without her seeing it done, and he said the weight was correct; that he would not cheat her. Before the woman was paid, Wulfson, the city inspector of [1] Section 2606, supra, defines two offenses connected with frauds in weights and measures, and, to the extent that it is involved in this case, it reads as follows: "Any person owning, or having charge of scales, measures or steelyards, for the purpose of For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes weights and measures, came upon the scene with his deputy, inquired about the transaction, and insisted on again weighing the sacks containing the work of the woman and her husband, whereupon appellant changed a record of the weight, which he had made on his books, by making a figure 9 out of the 7, thus making the recorded weight 930 pounds. Wulfson weighed the sacks of material, and making full allowance for the weight of the sacks, found the weight of the results of the work of the woman and her husband to be 831 pounds. He then placed appellant under arrest, and this prosecution ensued. Nothing was paid on this work until the trial of appellant in the city court, when payment was made by appellant for 730 pounds, but not for the 101 pounds which was the excess of the actual over the false weight, and at the time of the trial this had not been paid. [2] Counsel plant themselves upon the proposition that there can be no violation of the provision of section 2606, above set out, unless the transaction involved has been completed, and some one has been actually defrauded by the false report of a weight. We cannot yield our assent to the contention of counsel that, however fraudulent the intent may be in the mind of the one making such false report, loss or injury must result to some one therefrom before the offense is completed. This provision is among those of the Criminal Code, enacted to define offenses against honest dealing, and its plain purpose is to prevent and punish fraud, the purpose of which is to and which may harm or injure another. In such cases, where the one charged has committed the prohibited act, with the unlawful intent to defraud another, he has completed his offense, and cannot be absolved, because his wrongful conduct and purpose did not reach a successful conclusion. Among this class of offenses may be named those of making and presenting false claims, and forgery, defined by sections 2586 and 2587, Burns 1908, in neither of which is guilt of the offense dependent upon the successful accomplishment of the fraudulent purpose. [3] We think the evidence above reviewed shows that appellant knowingly reported a false and untrue weight to the woman with the intention of defrauding her. That this wrongful purpose was not accomplished was no fault of his. But if the contention of counsel, that the fraud must be successful and harm done before the punishment can follow, be conceded to be the correct interpretation of the statute, still we would not be warranted in reversing the conviction; for the woman testified that she had not been paid for the 101 pounds over the false weight, and there was no evidence to the contrary. Judgment affirmed. SWING v. TONER. (No. 21,872.) (Supreme Court of Indiana. Jan. 3, 1912.) PLEADING (§ 106*)-ABATEMENT-BAR-TIME AND MANNER OF PLEADING. which had never complied with the laws of InA foreign mutual fire insurance company diana, and was therefore not entitled to enforce contracts made in that state, became insolvent, and its existence was terminated by the courts, so that it never thereafter could comply with the Indiana laws. Its trustee sued to recover assessments levied against citizens of Indiana on policies issued in that state. Defendant's answer contained five paragraphs, the fifth with the Indiana laws, and was therefore not alleging that the company had never complied entitled to enforce such contracts. Held, a plea in bar and not a plea in abatement, which merely defeats the present proceeding, and was therefore not waived by a failure to plead it before pleading a general denial and other matter in bar. [Ed. Note.-For other cases, see Pleading, Dec. Dig. § 106.*] Appeal from Circuit Court, Cass County; John S. Lairy, Judge. Action by James B. Swing, as trustee, etc., against Albert D. Toner. Judgment for defendant, and plaintiff appeals. Affirmed. Transferred from Appellate Court under section 1405, Burns' Ann. St. 1908 (Acts 1901, p. 590). Myers & Yarlott, Holman & Stephenson, and Patterson A. Reece, for appellant. Stuart T. McConnell, Albert G. Jenkines, Bertram C. Jenkins, and Charles H. Stuart, for appellee. COX, J. This appeal is in an action brought by appellant, James B. Swing, as trustee for the creditors of the Union Mutual Fire Insurance Company of Cincinnati, a defunct mutual fire insurance company of Ohio, disincorporated by the Supreme Court of that state because of insolvency. The appellant's action was prosecuted against appellee in the lower court to recover assessments decreed by the Supreme Court of Ohio on a contingent liability of appellee as the holder of two policies of insurance in the company to share in the losses and expenses as provided by the laws of that state governing such companies. Appellee, the insured, was a resident of this state. The property insured was located therein. The insurance was contracted for, and the policies delivered to appellee, in this state through insurance agents or brokers here. and were therefore Indiana contracts. Ap pellee answered the complaint in five paragraphs, and the one question presented for determination arises from the action of the trial court in overruling appellant's demurrer to the fifth paragraph. This paragraph of answer alleged facts which show that the Union Mutual Fire Insurance Company at the time it issued its policies of insurance to appellee upon which the appellant's cause of action is based had not complied with any of the laws of this state providing the conditions under which foreign insurance companies may transact their business of insurance here, that it had never so complied, and that it had been disincorporated and rendered incapable of ever so complying with such laws. et seq. As these contracts cannot be enforced in our courts until such compliance, and, as this can never be, the rights under them are not merely suspended, they are barred. "Whenever the subject-matter of the plea or defense is that the plaintiff cannot maintain any action at any time whether present or future in respect of the supposed cause of action, it may, and usually must, be pleaded in bar; but matter which merely defeats the present proceeding, and does not show that the plaintiff is forever concluded, should in general be pleaded in abatement." 1 Chitty on Pleading (16th Am. Ed. from 7th Eng. Ed.) p. 462; Pomeroy's Code Remedies (4th Ed.) § 573; Swing v. Wellington, 44 Ind. App. 455, 463, 89 N. E. 514, and cases No error was committed in overruling the demurrer to this paragraph of answer, and the judgment is affirmed. It is the contention of appellant that the failure of the insurance company to comply with the laws of the state did not make these contracts of insurance with appellee void, but that it only suspended its right to enforce any liability from appellee to the company growing out of them until compliance, and that, therefore, the facts pleaded in this paragraph constitute matter in abatement. That being matter in abatement, it was waiv-cited there. ed by a failure to plead it as such before the general denial and other matters in bar, which were pleaded in the preceding paragraphs of answer, as section 371, Burns' 1908, provides that an answer in abatement must precede, and cannot be pleaded with, an answer in bar. In support of the claim that a failure by a foreign insurance company to comply with our laws merely suspends its right to enforce its contracts made in violation of the statutory provisions, and does not render them void, counsel for appellant cite Daly v. National Life Ins. Co., 64 Ind. 1; Phenix Ins. Co. v. Pennsylvania R. Co., 134 Ind. 215, 33 N. E. 970, 20 L. R. A. 405; Security, etc., Co. v. Elbert, 153 Ind. 198, 54 N. E. 753. Opposed to this position of counsel for appellant, counsel for appellee have presented a thoughtful and forceful brief and argument and review of our cases to support the claim that such contracts are invalid, and they cite as sustaining them Hoffman v. Banks, 41 Ind. 1; Union Cent. Life Ins. Co. v. Thomas, 46 Ind. 44; Walter A. Wood, etc., Co. v. Caldwell, 54 Ind. 270, 23 Am. Rep. 641; Cassaday v. Am. Life Ins. Co., 72 Ind. 95; Am. Ins. Co. v. Pressel, 78 Ind. 442; Wiestling v. Warthin, 1 Ind. App. 217, 27 N. E. 576. We are not constrained to rest the decision of the question involved in this case on the determination of MYERS, J., did not participate in the decision of this cause. STATE BANK OF GREENTOWN v. LAWRENCE. (No. 22,090.) (Supreme Court of Indiana. Jan. 3, 1912.) 1. PHYSICIANS AND SURGEONS (§ 22*)-SERV ICES-UNAUTHORIZED PRACTITIONER. Where a note was executed for medical services by a payee who was without a license to practice medicine in Indiana, when the practice of medicine without a license was prohibited by Burns' Ann. St. 1908. § 8410, the note was unenforceable in the hands of the payee for illegality of consideration. [Ed. Note.-For other cases, see Physicians and Surgeons, Cent. Dig. § 51; Dec. Dig. § 22.*] 2. BILLS AND NOTES (§ 375*) - BONA FIDE PURCHASER. Where a note given for an illegal consideration was purchased by plaintiff before matiff was an innocent holder. turity, it was enforceable on proof that plain [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 971-981; Dec. Dig. § 375.*] 3. BILLS AND NOTES (§ 339*) - BONA FIDE PURCHASER-DUTY TO INVESTIGATE. bound to use reasonable diligence to ascertain Persons dealing in commercial paper are the nature of the transaction in which the notes were given, if the circumstances under which the paper is offered for sale are calculated to excite suspicion of a reasonably cautious per son. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 821-823; Dec. Dig. § 339.*] 4. BILLS AND NOTES (§ 339*) - BONA FIDE PURCHASER-NOTICE. the above issue between counsel, for it is not necessarily involved therein. If the above-stated position of appellant's counsel is correct, it does not follow that the facts pleaded in the fifth paragraph of answer constitute matter in abatement, and not in bar. If the insurance company in question was a solvent and going concern, so that it might subsequently comply with our laws, it would be matter in abatement only if the decisions cited by counsel are to be followed. But the company became insolvent and was disincorporated. Its life has been taken away by the state that created it. It is plain that it can never comply with the laws of our state. Burns' 1908, §§ 4663, 4790, transfer of a note show that the purchaser has Where the circumstances surrounding the refrained from making inquiries lest he become acquainted with the transaction out of which the note originated, which would have shown illegality of consideration, the purchaser is not a bona fide holder. [Ed. Note. For other cases, see Bills and Notes, Cent. Dig. §§ 821-823; Dec. Dig. § 339.*] I Evidence held to warrant a finding that plaintiff bank when it purchased a note sued on possessed sufficient knowledge concerning the payee to place it under legal duty to make inquiry concerning the legality of the consideration, and, having failed to make such inquiry, could not recover on the note which was in fact based on an illegal consideration. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1832-1839; Dec. Dig. 8 525.*] 6. PHYSICIANS AND SURGEONS ($ 24*)-RIGHT TO PRACTICE EVIDENCE PRIMA FACIE CASE. Evidence that a physician had no license to practice in H. county, Ind., and that he was a resident of Chicago, was sufficient to prove prima facie that he was an unlicensed physician, and unauthorized to contract for services to be rendered in Indiana. 5. BILLS AND NOTES (§ 525*) - BONA FIDE country who were in ill health, and assure PURCHASER EVIDENCE. them he could cure them in a definite time, the patient to execute him a note, due at the end of such time, for the treatment, and he to execute a written agreement to return the note when due if no cure were effected. He then sold the note before maturity. When the note in issue was executed. Magee was driven to appellee's farm residence in Jefferson township, in Huntington county. Appellee was lying on a couch. Magee told him he was from Chicago, and was a specialist, with a capital of $175,000; that he was out on a vacation, advertising his business, and he had heard appellee was ill. He examined appellee, and told him he had catarrh and kidney trouble, and was in a very dangerous condition, and would soon be be yond relief; that he could cure appellee in one year. Appellee's wife was present, and the "doctor" found her also in great need of his treatment. For $120 he agreed to visit appellee and wife once per month for a year, and furnish them medicine to take and insure a cure. As a result of his solicitation, appellee executed this note, and Magee gave appellee a written agreement signed by himself, by the terms of which the note was to be returned to him in case appellee and his wife were not cured within the year. They never saw the doctor again. He sent them medicine which they took for some time. Each time they took it, however, it made them [Ed. Note.-For other cases, see Physicians and Surgeons, Dec. Dig. § 24.*] Appeal from Circuit Court, Huntington County; J. T. Alexander, Special Judge. Action by the State Bank of Greentown against Charles Lawrence. Judgment for defendant, and plaintiff appeals. Affirmed. Transferred from Appellate Court under Acts 1901, c. 259 (Burns' Ann. St. 1908, § 1405). Watkins & Butler and Blacklidge, Wolf & Barnes, for appellant. John Q. Cline and Claude Cline, for appellee. MORRIS, C. J. Suit by appellant on note for $120 executed by appellee on September 12, 1905, to W. A. Magee, due one year after date, payable at a bank of Hammond, and indorsed by Magee, and delivered to appellant, before maturity. Several paragraphs of answer were filed, among which was one alleging that the note was procured by fraud, and another that the sole consideration of the note was medical services, rendered by Magee, who, at the time, had no license to practice medicine. There was a trial by jury resulting in a verdict and judgment for defendant. Appellant filed a motion for a new trial, in which 142 causes therefor were alleged. This motion was overruled, and this action of the lower court is the only error assigned here. Appellee claims that the verdict is fully sustained by undisputed evidence, and that the judgment should be affirmed, regardless of intervening errors, if any. The uncontroverted facts are that for some years prior to September, 1905, the payee of the note, "Doctor" W. A. Magee, was a resident of Chicago, Ill., and claimed to be a medical and surgical specialist. He had no license to practice in Indiana. He carried on an extensive system of swindling operations in a number of counties in Northern Indiana. His scheme was somewhat similar to the Bohemian oats swindle, which was used extensively in this state some years ago. The "doctor" plan was to call on people in the worse. Finally, after about eight months. they quit taking Magee's medicine, called in a local physician who prescribed for them, and their ailments readily yielded to his treatment. Shortly after the note was executed Magee sold and indorsed it to appellant for $108. [1] When the note was executed, the prac tice of medicine, without a license, was prohibited in this state, under penalty of fine. Burns' Stat. 1908, § 8410. Consequently the note in the hands of Magee was not enforceable, because the consideration therefor was an illegal one. [2] The bank purchased the note before maturity for value. The note was not void. In the hands of an innocent holder it was enforceable. Schmueckle v. Waters, 125 Ind. 265, 268, 25 N. E. 281. Appellee claims that, if it be conceded that appellant had no actual notice of the note's infirmity, the uncontroverted evidence discloses such facts as legally put appellant on inquiry into its consideration, and, if inquiry had been made, appellant could not have failed to discover the illegality of the consideration and fraud in its procurement. [3] The law is well settled in this state that persons dealing in commercial paper are required to use reasonable diligence where the paper is offered for sale under circumstances that are calculated to excite the suspicion of a reasonably cautious person. Cit |