(167 Ind. 528) JACKSON v. MORGAN et al. (No. 20,862.)1 (Supreme Court of Indiana. Oct. 3, 1906.) 1. REPLEVIN-BONDS-ACTION-PARTIES.

In an action on a replevin bond, persons who were not parties to the bond were improperly joined as defendants.

2. SAME-JUDGMENT-VALUE OF PROPERTY.

Burns' Ann. St. 1901, § 558, declares that in actions for the recovery of specific personal property the jury must assess the value of the property and damages for the taking or detention, whenever by their verdict there will be a judgment for the recovery or return of the property. Section 581 provides that in such an action judgment for plaintiff may be for the delivery of the property, or the value thereof in case delivery cannot be had, and damages for the detention. Held that, whether the verdict in replevin be for plaintiff or defendant, the value of the property and all damages for its taking and detention must be settled and determined in the action of replevin.

[Ed. Note.-For cases in point, see vol. 42, Cent. Dig. Replevin, §§ 360, 377, 387.] 3. JUDGMENT-CONCLUSIVENESS.

Whenever there is a trial and judgment in an action of replevin, the judgment is conclusive on the parties and their privies in an action on the replevin bond as to all matters, that were or might have been litigated under the issues.

[Ed. Note. For cases in point, see vol. 30, Cent. Dig. Judgment, § 1299.]

4. REPLEVIN-GENERAL DENIAL-ISSUES AND

PROOF.

Where defendant in replevin filed a general denial, the right of possession of the property sued for, its value, and damages for the taking or detention thereof were in issue.

[Ed. Note.-For cases in point, see vol. 42, Cent. Dig. Replevin, §§ 257-263, 272-277.] 5. JUDGMENT-RES JUDICATA.

Where defendant in replevin recovered a judgment for the return of certain notes sued for, and for $100, the value thereof, in case return could not be had, under a plea of the general issue, and such judgment was satisfied by a payment of such amount, it was a bar to a subsequent action on the replevin bond to recover damages, including the amount of an alleged depreciation in the value of the notes between the time of the taking in the replevin suit and the time of the trial thereof.

[Ed. Note.-For cases in point, see vol. 30, Cent. Dig. Judgment, § 1104; vol. 42, Cent. Dig. Replevin, § 498.]

Appeal from Circuit Court, Hamilton County: S. R. Artman, Special Judge.

Action by George W. Jackson against Joseph R. Morgan and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

Neal & Beals and Doan & Orbison, for appellant. Daniel Wait Howe, Shirts & Fertig, and Chas. E. Averill, for appellees.

MONKS, J. It appears from the record that in 1901 appellees Joseph R. Morgan and Louis J. Morgan commenced an action in the Marion circuit court against appellant to recover the possession of certain promissory notes. A replevin bond was executed by Selenia J. Morgan as surety; the plaintiffs in said action not joining therein. The notes were delivered to said plaintiffs by the sheriff. Appellant filed a general denial to the com1 Rehearing denied.

plaint, and a trial of said cause resulted in a verdict in favor of appellant, the defendant therein, and that said property was of the value of $100. Judgment was rendered upon said verdict in favor of the appellant, the defendant in said action, for the return of said promissory notes, and for $100, the value thereof, "in case return cannot be had," and for cost. Said judgment was affirmed on appeal. Morgan v. Jackson, 32 Ind. App. 169, 69 N. E. 410. After the judgment was affirmed, appellant refused to accept the promissory notes when tendered, and Morgan and Morgan thereupon paid and satisfied the judgment, interest, and cost. Appellant afterwards brought this action on the replevin bond to recover damages, including the amount of an alleged depreciation in the value of said promissory notes between the time of the taking thereof in the replevin suit and the time of the trial of said action. The court below held, on demurrer for want of facts, that the same was insufficient against Joseph R. and Louis J. Morgan, because they had not joined in the execution of the said replevin bond. This ruling was correct. Borman v. Jung, etc., Co., 23 Ind. App. 399, 55 N. E. 495; Supreme Council, etc., v. Boyle, 15 Ind. App. 345, 44 N. E. 56.

Selenia J. Morgan, the surety on said replevin bond, having died after the commencement of this action, the administrator of her estate filed an answer, alleging that in the replevin suit the jury returned a verdict in favor of the defendant, the appellant in this action, and that "said property is of the value of $100"; that judgment was rendered on said verdict in favor of said defendant for the recovery of said promissory notes, or, upon failure of said plaintiffs to return the same, that said defendant recover of them the sum of $100, the value of the property "at the time of the trial," and for cost; that long before the commencement of this action the plaintiffs in said action tendered to appellant, the defendant in said action, all of said promissory notes, which he refused to accept, and thereupon the plaintiffs in said action fully paid and satisfied said judgment for $100, interest, and cost. Appellant's demurrer for want of facts to said answer was overruled, and, he refusing to plead over, judgment was rendered against him. Appellant insists that said answer was insufficient, because, no damages having been assessed in the replevin action, he was entitled to recover the same in this action-citing Yelton v. Slinkard, 85 Ind. 190; Whitney v. Lehmer, 26 Ind. 505.

Section 558, Burns' Ann. St. 1901 (section 549, Rev. St. 1881; section 549, Horner's Ann. St. 1901), requires that, "in actions for the recovery of specific personal property, the jury must assess the value of the property, as also the damages for the taking or detention, when ever by their verdict, there will be a judgment for the recovery or return of the property." Section 581, Burns' Ann. St.

1901 (section 572, Rev. St. 1881; section 572, Horner's Ann. St. 1901), provides that, "in an action to recover the possession of personal property, judgment for the plaintiff may be for the delivery of the property, or the value thereof in case delivery can not be had, and damages for the detention," when the defendant is entitled to a return of the property, judgment for him "may be for the return of the property, or its value in case return cannot be had, and damages for the taking and withholding of the property." It is evident that these sections contemplate that whether the verdict and judgment be for the plaintiff or defendant, for the recovery or return of the property, the value thereof, and all damages for its taking or detention, must be settled and determined in the action of replevin; Noble v. Epperly, 6 Ind. 414, 415; Tardy v. Howard, 12 Ind. 404; Conner v. Comstock, 17 Ind. 90, 92, 93; Chissom v. Lamcool, 9 Ind. 530, 532, 533; Matlock's Adm'r v. Straughn, 21 Ind. 128; Crocker v. Hoffman, 48 Ind. 207, 209, 210; Anderson v. Lane, 32 Ind. 102; Baldwin v. Burrows, 95 Ind. 81, 84, 85; 1 Works' Prac. & Pldng. (2d Ed.) p. 552, § 846. See, also, Teel v. Miles, 51 Neb. 542, 545, 71 N. W. 296. Whenever there is a trial and judgment in an action of replevin, the same is conclusive upon the parties and their privies, in an action on the replevin bond, as to all matters that were, or might have been, litigated under the issues. Landers v. George, 49 Ind. 309, 321; Smith v. Mosby, 98 Ind. 445, and cases cited; McFadden v. Fritz, 110 Ind. 1, 10 N. E. 120, and cases cited; Daniels v. Mansbridge (Ind. T.) 69 S. W. 815; 1 Herman on Estop. §§ 125, 253. See, also, 1 Van Fleet's Former Adjudication, pp. 359, 360, § 133; Cobbey on Replevin, §§ 1170, 1346; Ellis v. Crowl, 46 Kan. 100, 26 Pac. 454; Carroll v. Woodlock, 13 Mo. App. 574; White v. Van Houten, 51 Mo. 577; State v. Dunn, 60 Mo. 60, 71; Hanlon v. O'Keife, 55 Mo. App. 528, 532, 533; Freeman v. Lavenue, 99 Mo. App. 173, 177, 72 S. W. 1085, and cases cited; Drewyour v. Merrill, 112 Mich. 681, 71 N. W. 486.

Under the general denial, a defendant in an action to recover the possession of personal property may give in evidence anything that will tend to defeat plaintiff's claim of title or right of possession. Lane v. Sparks, 75 Ind. 278, and cases cited; Aultman v. Forgey, 10 Ind. App. 397, 401, 403, 36 N. E. 939, and cases cited; Shipman Coal Co. v. Pfeiffer, 11 Ind. App. 445, 449, 450, 39 N. E. 291; 2 Works' Ind. Prac. & Pldg. §§ 1491, 1492; Cobbey on Replevin (2d Ed.) §§ 752, 825; 1 Ency. of Pldg. & Prac. p. 822. Under such general denial, if the case made by the evidence authorizes a return of the property to the defendant, he is entitled to such judgment. Matlock's Adm'r v. Straughn, 21 Ind. 128; Conner v. Comstock, 17 Ind. 90, 92, 93. As appellant filed a general denial in the action of replevin, it is

evident that the right of possession of the promissory notes, their value, and the damages for the taking or detention thereof were issues in said cause. In Whitney v. Lehmer, 26 Ind. 505, which was a suit on a replevin bond by the defendant in the action of replevin, it appeared that he had only taken a judgment for the return of the property, and that neither the value thereof, nor the damages, bad been assessed or found, nor any judgment rendered therefor. The court held that, as there had been no such assesment in the replevin action, "it does not follow that the property was of no value." and that the value thereof could not be recovered in an action on the replevin bond for failure to return the property as adjudged by the court. In Yelton v. Slinkard, 85 Ind. 190, a suit on a replevin bond by the defendant in the replevin action, in which there was verdict and judgment for the return of the property to the defendant, and cost, but no assessment nor judgment for its value, nor the damages for withholding it, the court held that, if the property was not returned as adjudged, a recovery could be had upon the bond for its value and damages. The court said, however, in Whitney v. Lehmer, 26 Ind. 506, 507: "An assessment of the value of the property in the replevin suit, and a judgment in the alternative for its return or its value, would, as evidence, undoubtedly have bound the parties upon the question of value, for the reason that it would have been a judicial determination of that question by a tribunal having that authority, putting it at rest forever." In this case, however, the jury assessed the value of the property, which, as decided in Whitney v. Lehmer, 26 Ind. 503, 506, 507, and cases cited, puts that question "at rest forever." Does the fact that the jury assessed, and the court adjudged, no damages except the value of the promissory notes in the action of replevin, prevent appellant recovering on the replevin bond any damages he might have recovered as such in the action of replevin?

It is evident, under the authorities cited in this opinion, that a judgment in an action of replevin for the return of the property to the defendant, or its assessed value and damages and cost, in case return could not be had, fixes the measure of damages in an action on the replevin bond, where the property is not returned, at least as to everything before the trial of the cause. The claim for damages in the action of replevin, by either party, when there is judgment for the recovery or return of the property, includes the value of the property, as well as the other damages to which he may be entitled. This claim is entire and indivisible, and a party cannot recover a part of it in one action and subsequently maintain an action for the remainder, Daniels v. Mans bridge, 69 S. W. Rep. 815. Appellant recovered in the action of replevin the value of

the property, one of the items of damages, if the property was not returned to him as adjudged. If there were other items of damages, the time for appellant to prove and have them assessed was when the action of replevin was tried. He has had his day in court, not only as to the value of the property, but as to all other claims for damages, at least to the time of the trial. In Daniels v. Mansbridge, 69 S. W. 815, decided by the Court of Appeals of the Indian Territory, the defendant in the action of replevin, having obtained judgment for the return of the property, or for its value, $1,167, in case return could not be had, and for costs, brought suit on the replevin bond, alleging that he was damaged by "the unlawful and willful seizure, sale, conversion, and detention of said property in the sum of $2,020." Before the commencement of the action on said replevin bond, the plaintiffs in the replevin suit paid and satisfied the judgment, interest, and cost in said action for replevin. The statutes of said territory, as to the verdict and judgment in an action for the recovery of personal property, were the same as sections 558, 581, Burns' Ann. St. 1901 (Sections 549, 572, Rev. St. 1881; sections 549, 572, Horner's Ann. St. 1901). Said court, quoting said statutes, held that, the judgment and cost having been fully paid and satisfied, no recovery could be had upon the replevin bond for such damages.

It is not necessary for us to determine whether or not the value of the property assessed by the jury should be its value at the time of the trial, as in the replevin action in this case, or its value when taken on the writ of replevin, for the reason that, even if error were committed in assessing the value at the time of the trial, the same is conclusive on the parties and their privies so long as said judgment stands unreversed. It follows, therefore, that the court did not err in overruling appellant's demurrer to said an

A motion for a new trial in a criminal case which is copied in the bill of exceptions, but which does not appear elsewhere, is not a part of the record.

[Ed. Note.-For cases in point, see vol. 15, Cent. Dig. Criminal Law, §§ 2790, 2800, 2946.j

Appeal from Circuit Court, Clark County; C. W. Cook, Special Judge.

John Wurfel was convicted of an assault and battery with intent to commit rape, and he appeals. Affirmed.

Jas. W. Fortune, for appellant. Chas. W. Miller, Atty. Gen., for the State.

MONTGOMERY, J. Appellant was convicted of an assault and battery with intent to commit rape. A number of alleged errors, which might properly have been urged as grounds for a new trial, have been assigned. The only proper assignment of errors is the overruling of appellant's motion for a new trial. The motion for a new trial is not embraced in the record proper, but only in what purports to be a bill of exceptions. This bill of exceptions is not identified, but is merely attached to the transcript, and there is no record entry of the filing of the same. If it were conceded that this bill of exceptions constituted a part of the record, which we need not and do not decide, still it must be held that a motion for a new trial, which is copied in such bill, but does not appear elsewhere, is not properly a part of the record. Wilson v. State, 156 Ind. 631, 59 N. E. 380, 60 N. E. 1086, and cases cited.

In the absence of the motion for a new trial, no error is made to appear, and the judgment is affirmed.

Where a complaint on a foreign judgment showed that in an action commenced by plaintiffs against defendant in the circuit court of M. county, Wis., defendant entered a full appearance, that on the trial the judgment sued on was rendered, and that the Wisconsin court was a court of general jurisdiction, the complaint was sufficient to require an answer, though it contained neither copies of the pleadings nor allegations showing that the judgment declared on was responsive to the issues.

[Ed. Note. For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1772, 1773.] 2. SAME-EVIDENCE-TRANSCRIPT.

Where the transcript of a foreign judgment, though not containing the pleadings and issues, was properly authenticated, as required by Burns' Ann. St. 1901, §§ 458, 479, and exhibited an entry of a personal judgment by the circuit court of M. county, Wis., in favor of plaintiff and against defendant for a specified sum, it was properly admitted in evidence in a suit on such judgment, and was prima facie evidence of the debt.

[Ed. Note. For cases in point, see vol. 30, Cent. Dig. Judgment, § 1782.]

3. SAME-PRESUMPTIONS.

Where, in an action on a foreign judgment, it sufficiently appeared from the transcript that the judgment declared on was rendered by a court of record, it would be presumed that such court was a court of general jurisdiction, had jurisdiction of the subject-matter of the action and the parties thereto, and rightfully gave the judgment sued on.

[Ed. Note. For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1473, 1781.] 4. SAME TACK.

JURISDICTION

COLLATERAL AT

In an action on a foreign judgment, jurisdiction, while presumed, is nevertheless a subject open to inquiry, and may be collaterally attacked.

[Ed. Note. For cases in point, see vol. 30, Cent. Dig. Judgment, § 1475.]

1 Rehearing denied.

5. SAME-CONCLUSIVENESS.

A judgment is conclusive on all questions which were or might have been litigated and determined within the issues before the court; but if the judgment is not responsive to the issues, and is not an adjudication of a subject included therein, it is void.

[Ed. Note.--For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 1263-1268.]

6. EQUITY-SCOPE OF RELIEF.

Where, in a suit in equity, the court had jurisdiction of the parties and subject-matter, it had power to determine the rights of the parties on the facts and grant any relief that might be proper within the issues.

[Ed. Note.-For cases in point, see vol. 19, Cent. Dig. Equity, §§ 986-988.]

7. CANCELLATION OF INSTRUMENTS GRANTED-PERSONAL JUDGMENT.

RELIEF

In a suit to set aside certain notes for fraud, plaintiff prayed that defendants be perpetually restrained from selling or negotiating or otherwise transferring the notes, that they be surrenderd and canceled, that a temporary injunction issue, that plaintiff recover damages and costs, and for such further relief as was just and equitable. At the time the suit was brought plaintiff did not know that the notes had been transferred and were in the hands of innocent purchasers, which developed at the trial. Held, that the court, on determining that the notes were fraudulent, was authorized in such suit to render a personal judgment against defendants, though equitable relief could not be granted.

[Ed. Note. For cases in point, see vol. 8, Cent. Dig. Cancellation of Instruments, § 114.] Appeal from Circuit Court, Hamilton County; Ira W. Christian, Judge.

Action by Charles Leutzke and others against Austin Roberts. From a judgment for plaintiff's, defendant appeals. Affirmed.

Gavin & Davis, for appellant. Shirts & Fertig, for appellees.

MYERS, J. The complaint in this case is in one paragraph, and is founded upon a judgment rendered in favor of appellees and against appellant in the circuit court of Manitowoc county, Wis. The overruling of a demurrer to the complaint is assigned as Appellant contends that the complaint is defective for the reason that it does not disclose the cause of action or subjectmatter in controversy before the Wisconsin court. According to appellant's theory, in order to make this complaint good, it should contain copies of the pleadings, or at least allegations showing that the judgment declared on was responsive to the issues. The complaint now under consideration shows that in an action commenced by appellees against appellant in the circuit court or Manitowoc county, Wis., appellant entered a full appearance, and upon a trial of that cause the judgment herein sued on was rendered, and that the Wisconsin court is a court of general jurisdiction. Upon the authority of Gates v. Newman, 18 Ind. App. 392, 46 N. E. 654, the complaint in the case at bar is sufficient to require an answer. The second and only other error assigned by appellant is the overruling of his motion for a new trial. Considering the reasons as

signed by appellant for a new trial in the order by him discussed, our attention is called (1) to the ruling of the court in admitting in evidence, over his objection, the transcript of the judgment of the Wisconsin court. This transcript does not contain the pleadings and issues tendered in that court, and upon that ground appellant bases his objection. That the transcript is properly authenticated under sections 458, 479, Burns' Ann. St. 1901, and exhibits an entry of a personal judgment given by the circuit court of Manitowoc county, Wis., in favor of appellees and against appellant, for $3,884.85, is unquestioned. This being true, it was properly admitted in admitted in evidence (Lieb v. Lichtenstein, 121 Ind. 483, 490, 23 N. E. 284; Bailey v. Martin, 119 Ind. 103, 21 N. E. 346), and was prima facie evidence of the debt herein sued on (Holt v. Alloway, 2 Blackf. 108).

The second reason discussed by appellant in support of his motion for a new trial is that the decision of the trial court is not sustained by sufficient evidence and is contrary to law. It is a familiar rule of law that all presumptions and intendments are to be indulged in favor of the regularity of all the acts and proceedings of courts of general jurisdiction, that they have jurisdiction to give the judgments they render, and that such judgments are according to the laws of the state where had. In the case at bar it sufficiently appears from the transcript that the judgment declared on was rendered by a court of record, and, being a court of record, it is presumed to be a court of general jurisdiction (Old Wayne, etc., Association v. McDonough, 164 Ind. 321, 330, 73 N. E. 703); and, applying the rule just stated, it is presumed to have jurisdiction of the subject-matter of the action and of the parties interested (Old Wayne, etc., Association v. McDonough, supra; Gates v. Newman, supra), and to have rightfully given the judgment sued on (Runner v. Scott, 150 Ind. 441, 50 N. E. 479; Galpin v. Page, 18 Wall. [U. S.] 350, 21 L. Ed. 959). While jurisdiction may be presumed, it is nevertheless a subject open to inquiry, and may be attacked in a collateral proceeding. Grover, etc., Mach. Co. v. Radcliffe, 137 U. S. 287, 11 Sup. Ct. 92, 34 L. Ed. 670; Thormann v. Frame, 176 U. S. 350, 20 Sup. Ct. 446, 44 L. Ed. 500; Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; American, etc., Ins. Co. v. Mason, 159 Ind. 15, 64 N. E. 525; Long v. Ruch, 148 Ind. 74, 47 N. E. 156; Runner v. Scott, supra; Gates v. Newman, supra. The Wisconsin judgment is fair on its face. and the burden of showing a want of jurisdiction in the court rendering it was upon appellant. By his affirmative paragraph of answer to the complaint herein he challenges the validity of the judgment in suit upon the theory that no pleading or issue before the Wisconsin court authorized a personal judg

ment against him, and therefore the finding and judgment of the court in that respect was not only irregular, but coram non judice and void. The settled law in this state is that a "judgment is conclusive upon all questions which were or might have been litigated and determined within the issues before the court." Maynard v. Waidlich, 156 Ind. 562, 570, 60 N. E. 348, and cases cited. But, where the judgment is not responsive to the issues and not the adjudication of a subject included in them, it will be considered irregular and void. McFadden v. Ross, 108 Ind. 512, 8 N. E. 161, and cases cited; Hutts v. Martin, 134 Ind. 587, 33 N. E. 676; Whitney v. Marshall, 138 Ind. 472, 37 N. E. 964; Bremmerman v. Jennings, 101 Ind. 253, 257; Reynolds v. Stockton, 140 U. S. 254, 11 Sup. Ct. 773, 35 L. Ed. 464; Pray v. Hegeman, 98 N. Y. 358.

Appellant introduced in evidence a transcript of all the pleadings, proceedings, and judgment in the Wisconsin court. From this transcript we learn that on June 22, 1903, appellees commenced a suit in equity in the circuit court of Manitowoc county, Wis., wherein appellant and others were defendants. The complaint alleges, in substance, that a certain firm of lawyers, residents of Manitowoc county and parties to the action, have in their possession, as agents of the firm of which appellant was a member, three notes of $1,000 each; that appellees' signatures were obtained to said notes through false and fraudulent representations made to them separately and individually by appellant's agent, one O'Connell, and upon an agreement with O'Connell that said notes would not be delivered to his principal and have validity until each had been signed by all the parties subscribing for stock in a company being formed for the purpose of purchasing a stallion, property of appellant's firm, and then in the possession of said O'Connell, as their agent; that unless said notes were signed by all the parties aforesaid they were to be returned to the subscribers and destroyed; that a number of the subscribers for stock in said proposed horse company refused to sign, and never did sign, said notes; that on March 5, 1903, O'Connell delivered said stallion to one of appellees, to be held by him for all who had subscribed for stock, and upon condition that all who had subscribed for stock should join in the execution of said notes; that said O'Connell, contrary to the agreement and conditions upon which appellees signed said notes, delivered the same to his principal, who took possession thereof, and who, on and after March 6, 1903, claimed to be the owner and holder thereof; and that the same were legal and valid claims against appellees, and were attempts to sell and negotiate the same to innocent third persons, so as to cut off, if possible, appellees' defense thereto. The complaint also contains allegations relative to said agent's representations as to

said horse being sound and free from disease at the time he was delivered to appellee, and as to his unsoundness and diseased condition at that time, and as to certain subscriptions for stock being fraudulent, which were by said agent represented to be bona fide, also allegations relative to appellees' demand upon appellant for the return of said notes and their offer to surrender said stallion, and claiming expense for his keep, and closes with the following prayer: (1) That said firm of attorneys, naming them, also the members of appellant's firm, “be each perpetually restrained and enjoined from selling, negotiating, or otherwise transferring the said notes, or any one of them. (2) That said notes, and each of them, be surrendered into court and canceled. (3) That a temporary temporary injunction be issued, restraining and enjoining the said defendants * * * from selling, negotiating, transferring, or parting with the possession of said notes, or any of them, during the pendency of this action, and until the further order of court. (4) For their damages in the sum of $300, and for the costs and disbursements of this action. (5) For such other and further order, judgment, and relief as the court, upon the proof, may deem just and equitable." Said firm of lawyers answered by admitting that they were in possession of said notes; that they had received the same from the Citizens' National Bank of Attica, Ind., through the Manitowoc Savings Bank of Manitowoc, Wis.; that they have no interest in said action and are willing and ready to deliver the notes to whoever may be entitled to the same. This transcript further shows that one Alvin P. Nave and the Citizens' National Bank of Attica, Ind., were admitted as parties defendant to that action, and each filed a separate answer showing that, prior to the commencement of the action, and in the due course of business, and for value, said notes had been transferred by appellant's company to Nave, and by Nave to said bank, and that said bank was then entitled to the possession of the same. The transcript also shows that appellant answered the complaint, admitting that he and others were partners, doing business at Westfield, Ind., at the time appellees' alleged cause of action accrued, bu that subsequent thereto, on October 7, 1903, said partnership was dissolved; that he had possession of all the partnership property for the purpose of closing up its affairs. Said answer further shows that said partnership, through their agent and servant, O'Connell, in the spring of 1903, desiring to sell one of their stallions, solicited and obtained from persons, including all of appellees, subscriptions for 30 shares or interests in said horse. when purchased at $100 per share; that by said subscription each and every subscriber thereto promised, on the delivery of said horse to the company then forming, to pay the purchase price therefor by execut