and does not now own said note or judg-one-half of the proceeds, she is to that extent ment, but holds the same on the trust above a real party in interest. ** * Concedmentioned; that, before said Proctor received ing, but by no means deciding, that the apsaid note on trust aforesaid, this defendant, pellant has a real interest in one-half of the Erastus B. Cole, became the equitable owner avails of the note obtained from Mrs. Wells, of said notes for a valuable consideration he is still not in a position to defeat the aptheretofore paid to said Henderson Cole, and pellee. This we affirm, because he cannot that said notes were indorsed to him, after use a note in which another has an interest said note against Henderson Cole was re- as a set-off. Our decisions are uniformly to ceived as aforesaid, in order to invest him, the effect that the claim asserted as a set-off Erastus B. Cole, with the legal title thereto, must be held by the party who asserts it, and and for no other purpose. not by him and another jointly. Mutuality. is essential to the validity of a set-off." To the same effect is the case of Proctor v. Cole, 115 Ind. 15, 17 N. E. Rep. 189. We see no reason to change the conclusion reached in each of these cases; and we think they settle beyond cavil that appellant William Proctor does not stand in a situation to use the claim acquired from Mrs. Wells as a set-off against the claim in suit. "(11) To these answers so filed the said William Proctor filed a reply in general denial. "(12) Thereupon, on the issues so formed, the cause was submitted to this court for trial, and the court, having heard the evidence, found for the defendant therein, the plaintiff in this action, and adjudged that said William Proctor take nothing by his complaint; that Erastus B. Cole became and was the owner of said notes, including the one in suit, on the 23d day of February, 1880, and was entitled to the possession of the three notes, including the one in suit, and that said Proctor did not obtain his alleged set-off until after the 23d day of February, 1880. "WILBER L. STONEX, Special Judge." Upon the filing of this special finding of the facts, the appellants filed a motion for a new trial, alleging as a reason therefor that the court erred in permitting the plaintiff to read in evidence the contract of purchase between William Proctor and Alma S. Wells. The court overruled said motion, and the appellants excepted. The court then stated its conclusions of law upon said facts as follows: "First. The plaintiff is entitled to recover from the defendant William Proctor the sum of $1,520.25, and to the foreclosure of his mortgage against all the defendants. Second. That the defendant is not entitled to have his judgment against Henderson Cole set off against the plaintiff's claim." Thereupon, judgment was rendered against the appellant William Proctor, and a decrée of foreclosure against all the defendants in this action. It is argued at great length, and with much earnestness, that the court erred in its conclusion that the appellants were not entitled to set off the judgment rendered against Henderson Cole against the claim of the plaintiff in this action. It would seem to be a sufficient answer to that argument to say that that question was settled in the case of Proctor v. Cole, 104 Ind. 373, 3 N. E. Rep. 106, and 4 N. E. Rep. 303. In speaking of the claim upon which the judgment against Henderson Cole was rendered, and of the contract under which the appellant William Proctor acquired it, ELLIOTT, J., said: "The assignment of the note relied on as a set-off did not make the appellant the real party in interest as to the entire proceeds of the note. The utmost that can be granted is that he became the owner of one-half of the proceeds, and no more. If Mrs. Wells was entitled to It is further contended that the judgment in favor of the appellant William Proctor against Henderson Cole is conclusive against the appellee in this case upon the question of ownership of the Wells note. We do not think so. The suit in that case was conmenced, and judgment rendered, after the appellee acquired an interest in the note in suit. The appellee was not a party to that suit. To hold that the judgment in that case is conclusive against the appellee would be to hold that he might be deprived of one of his defenses without the opportunity of being heard. The doctrine is elementary, and is so well known that it needs no citation of authorities, that a person is not bound by a proceeding in court to which he is not a party, and in which he had no opportunity of being heard. We do not think the court erred in admitting in evidence the contract under which the appellant William Proctor claimed to have purchased the Wells note. It was competent for the appellee to show, on the trial of the cause, that the appellant had no such interest in that note as would enable him to use it as a set-off in this case. The contract under which he claimed to be the owner of it tended to prove that fact. We find no error in the record for which the judgment should be reversed. Judgment affirmed. MITCHELL, J., took no part in the decision of this case. David Kilgore, trustee for his children, was removed by the court for refusing to give bond. From the order removing him he appealed. James N. Templer and John F. Sanders, for appellant. J. W. Ryan, contra. statutory requirement. On the other hand, where the power or authority of a trustee to do an act or make a sale is derived from or where he is appointed by the court, and the statute requires the execution of a bond as a condition upon which the appointment may be made or the power exercised, the power can be conferred only upon the statutory pressed by the author of the trust. Ilies v. Martin, 69 Ind. 114; 1 Perry, Trusts, § 262. A testator has a right to dispose of his property in the manner deemed most satisfactory to him, and it is his province to repose a special trust and confidence in whomsoever he chooses. If he appoints a trustee, and vests him with power to execute the trust without the aid or appointment of the courts, his express directions exempting the trustee from giving bond cannot be disregarded without showing that the trust-estate is being wasted, and that the condition and circumstances of MITCHELL, J. The fifth clause of the will of David Kilgore, who died in Delaware coun-conditions, without regard to the wishes exty, the owner of real and personal estate, reads substantially as follows: "My son David to have and hold in trust for his children now born, or which may hereafter be born during his natural life, one full and equal fourth part of my property, real and personal, with the right to use any income, or rents thereof, to and in raising and educating his children, and he shall not be required to give bond as such trustee, but for any waste or abuse of trust may be removed and another appointed by the court." It appears from the record that the trustee presented a petition to the Delaware circuit court, pray-the trust are wholly different from what ing its order and direction in respect to cer- they were when the appointment was made. tain matters pertaining to the trust. Before Where one has been appointed executor who the petition was finally disposed of, the court, requires the issuance of letters with the will of its own motion, and without any refer- annexed, other principles control. It is unence to the matters embraced in the petition, deniably true that trustees and trust-estates entered an order requiring the trustee within are, by the express terms of the statute, 10 days to give a bond in the penal sum of placed under "the equitable control of the $3,000, with approved freehold surety, for court having jurisdiction thereof, for the the faithful discharge of his duties as trus-preservation of the funds and carrying out tee under the will. This order was made the purposes of the trust," and that in a over the objection of the trustee. It is re- proper case the court may, by virtue of its cited in a bill of exceptions set out in the rec-inherent chancery jurisdiction over trust-esord that, the trustee having failed and re- tates, require the execution of a bond for the fused to give bond and to comply with the faithful administration of the trust. Thieorder of the court, the court thereupon, of its own motion, ordered that he be removed from his trust as trustee under the will. It further appears by bill of exceptions that the court had made certain orders, the purport of which, with the exception of the order to file a bond, does not very clearly appear, and that the trustee had failed to comply with the orders so made. Thereupon, without any petition charging any violation or attempted neglect of duty, and without any hearing or previous notice, the court removed him upon its own motion. baud v. Dufour, 54 Ind. 320; State v. Roudebush, 114 Ind. 347, 16 N. E. Rep. 636; Tucker v. State, 72 Ind. 242. If, however, it be the clearly expressed purpose of the author of the trust that the trustee shall not be required to execute a bond, it is not within the power of the court to set aside an unequivocal provision of the will or deed by ordering the execution of a bond, except its aid or jurisdiction is invoked in the course of a matter or proceeding in which the statute requires the filing of a bond. The testator appointed his son trustee of an express trust. The record presents two questions for de- He declared in unequivocal language that cision: (1) Had the court power to require the trustee should not be required to give a the trustee to execute a bond for the faithful bond, but that if he abused his trust he discharge of his duties, notwithstanding the should be removed and another appointed in direction of the testator that he should not his place. What the testator desired was be required to give bond? (2) Had the court that the trust should be faithfully administhe power, of its own motion, to remove the tered by his son without a bond, and that if trustee without petition or motion, and with- he failed so to administer it that he should out previous notice, and an opportunity to be be removed. It was not the execution of a heard? Both the foregoing inquires must bond he wanted in case the confidence he had receive a negative answer. Where an ex-reposed should be abused. What he expressly press trust is created by will or deed, and the provided for in such a contingency was that trustee is vested with plenary power, so as the trust should be committed to other hands not to require the aid or appointment of the without involving his son in further compli court in the execution of the trust, the court cations. The testator doubtless had abundhas no power to interfere and require the ex-ant reason for making the provision he did. ecution of a bond in opposition to the declared wishes of the author of the trust, except it be done in pursuance of some express The court had no power to change it. The proceeding before the court at the time the order was made was not one in which the statute required the filing of a bond. The | was convicted was that of an assault and batorder requiring the trustee to file a bond was therefore erroneous. tery with intent to commit a rape upon the said child. There was a motion to quash the indictment. The objection made to the information was that it did not allege that the child was ravished forcibly and against her will. These allegations are not necessary when the female is under the age of 12 years. In that event, the law conclusively presumes that she is incapable of giving her consent, and declares the mere act of sexual intercourse a crime. There was a motion for a new trial overruled, and an exception taken by the appellee. But one question is presented for our consideration, which is the sufficiency of the evidence to support the conviction. We are referred to the case of Stephens v. State, 107 Ind. 185,8 N. E. Rep. 94, and it is correctly contended by counsel for the appellant that, under the law as ruled in that case, the judgment should be reversed, for the reason that there is not only a failure to prove that the appellant Coming, now, to the second question, it is apparent at once that the will made the appellant a trustee of an actual trust in which he had a beneficial interest of a pecuniary character. It gave him the right to use and enjoy the income and rents of one-fourth of the testator's real and personal estate, to aid him in raising and educating his children. He had the right to take the possession and management of the trust-estate and continue to use and manage it as long as he remained faithful to the purposes of the trust. This constituted a valuable right of which he could not be deprived, except for some abuse or attempted violation of the duties of his trust, upon petition by or on behalf of some person interested, and after due notice and an opportunity to be heard. In re Livingston, 34 N. Y. 555; McPherson v. Cox, 96 U. S. 404. That a court of chancery has power, independently of any statutory pro-touched the person of Elsie Truitt on the occavision or of any directions contained in the sion referred to, but, if there had been eviinstrument, to remove a trustee, for good dence tending in that direction, that there was cause shown, is well established. People v. an entire absence of evidence tending to show Norton, 9 N. Y. 176; 2 Pom. Eq. Jur. § 1086. that the advances were resisted by the child, The power of the court in that respect is as or that she was incapable of resisting. The broad and comprehensive as the exigencies rule, as laid down by the learned judge deof any case may require. In exercising its livering the opinion, is to the effect that, to jurisdiction the court does not, however, act constitute an assault and battery with intent arbitrarily, but upon certain well-defined prin- to commit a rape, the act must be accompaciples, and after affording the trustee an op- nied with force and against the will of the feportunity to answer the charges made against male, without reference to her age. But we are him, and giving him ample opportunity to be not willing to adhere to that case. The statheard. 2 Perry, Trusts, §§ 817,818. What- ute having made the act of sexual intercourse ever causes may have existed for the removal with a female child under 12 years of age a of the trustee in the present case, as it is crime, it must follow as a logical concluaffirmatively shown that he was not removed sion that the abuse of her person with a upon any charges preferred or after a hear-view to the accomplishment of that act coning and consideration of the case, the pro-stitutes an assault and battery with the inceedings of the court were, to say the least, erroneous. The judgment is reversed, with costs. (120 Ind. 115) MURPHY V. STATE. tent to commit a rape, if sexual intercourse does not take place. If, under the law, a female under 12 years of age is incapable of giving her consent to the act of sexual intercourse, then she is equally incapable of consenting to all familiarity with her person, which necessarily precedes the consummation of the act. It was not the intention of Under the Indiana statute making the act of the legislature that a female under 12 years sexual intercourse with any female under the age of age, because of her tender years, should of 12 years a crime, any touching of the person of be protected from an accomplished act of sea female under that age, with intent to have sex-duction, but left entirely unprotected from ual intercourse with her, is an assault and battery with intent to commit rape, whether it be done against her will or not. Stephens v. State, 107 Ind, 185, 8 N. E. Rep. 94, overruled. Appeal from circuit court, Sullivan county; JOHN C. BRIGGS, Judge. W. S. Maple, for appellant. W. C. Hultz, O. B. Harris, and The Attorney General, for the State. BERKSHIRE, J. The appellant was tried upon an information, and sentenced to the state's prison for two years. The particular crime with which he was charged was that of rape upon Elsie Truitt, a female child of the age of six years. The crime for which he all of the defiling acts of the seducer which lead up to her seduction. Whenever sexual intercourse is attempted with a female under 12 years of age, whether with or without her consent, there exists a felonious intent on the part of the male; and if the attempt miscarries, but in what is done there is a touching of the person of the female, it is an unlawful touching, in a rude and insolent manner, and constitutes an assault and battery, and, with the felonious attempt which is present, it is an assault and battery with intent to commit a felony. We cannot imagine how it is possible for one person to touch another, intending there OLDS, J. This is an action by the appellant against the appellees on the bond of appellee Keifer, as trustee of Troy township, in Perry county. The breach of the bond assigned in the complaint is that Keifer, as such trustee, made out and presented to the board of commissioners of Perry county, at the August term, 1883, his itemized account for services, as required by law, amounting to $214, which was examined and allowed by said board of commissioners; that said Keifer procured a certificate from the auditor of said county stating that said sum had been allowed to said Keifer, as trustee, for his services, and that he sold and transferred said certificate and his claim for services to one James M. Combs, who afterwards sold and assigned the same to the appellant, James Peter; that afterwards said Keifer procured a duplicate certificate from the auditor of said county, and, in a settlement with the board of com by to commit a felony, without the act of touching being rude, insolent, and unlawful. Section 1834, Rev. St. 1881, which reads as follows, strongly supports our conclusion: "Upon an indictment or information for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment or information, and guilty of any degree inferior thereto, or of an attempt to commit the offense." The italics are our own. If the rule as declared in the case of Stephens v. State, supra, is to be adhered to, then there can be a rape committed, but no criminal attempt to commit the crime, if the child is under 12 years of age, and does not resist, and thus an exception to this section of the statute is created, although it recognizes no exception. We refer to the following authorities, cited by counsel for the appellee, which we have examined, and find that they support the conclusion to which we have ar-missioners, said Keifer took credit for said rived. Hays v. People, 1 Hill, 351; People v. McDonald, 9 Mich. 149; People v. Crosswell, 13 Mich. 428; Stephen v. State, 11 Ga. 226; State v. Johnston, 76 N. C. 209; Com. v. Roosnell, 143 Mass. 32, 8 N. E. Rep. 747; Givens v. Com., 29 Grat. 830; State v. Cross, 12 Iowa, 66; State v. Dancy, 83 N. C. 608; People v. Mills, 17 Cal. 276; Lawrence v. Com., 30 Grat. 845; State v. McCaffrey, 63 Iowa, 479, 19 N. W. Rep. 331; State v. Tarr, 28 Iowa, 397; Cliver v. State, 45 N. J. Law, 46; McComas v. State, 11 Mo. 116. We take the following from the case of Campbell v. People, 34 Mich. 351: "The lesser offense of felonious assault is necessarily included in the offense of rape, the complete offense being an aggravation of the felonious assault." We come now to the only other question in the record: Was the evidence sufficient to support the conviction? We are compelled to hold that it was not. There is an entire failure of proof tending to show that the appellant, on the occasion in question, touched the person of the child, Elsie Truitt, or that he did any act from which such touching could be inferred. See State v. Jaeger, 66 Mo. 173. The judgment is reversed, and cause remanded for further proceedings. The clerk will give the necessary notice for the return of the prisoner to the custody of the sheriff of Sullivan county. The sum so allowed to him, and filed the duplicate certificate as a voucher for said amount. Copies of the bond and certificate of the auditor were filed with the complaint. certificate of the auditor states "that at a settlement with the board of commissioners of said county, on the 9th day of August, 1883, Lawrence Keifer, trustee of Troy township, was allowed the sum of two hundred and fourteen dollars for his services as such trustee to said date." The appellees demurred to the complaint for cause that it did not state facts sufficient to constitute a cause of action; which demurrer was sustained, exceptions reserved, and the ruling assigned as error. It is contended by counsel for appellant that the transfer and assignment of the certificate created an indebtedness on the part of the township to the appellant, which it was the duty of Keifer, as trustee, to pay, and a failure to pay the same constitued a breach of his bond. The only condition of the bond which it can be contended has been violated is that which provides that he "shall well and faithfully discharge the duties of said office according to law." The indebtedness to appellant from the township, if any indebtedness existed, was created by the assignment and transfer by Keifer of his claim for services. Such assignment and transfer was not a part of the duties of Keifer, as trustee, nor does the law contemplate or authorize the doing of any such official act; and of this, persons dealing with him, and taking an assignment of his claim, were bound to take knowledge. It does not appear from the complaint what was the character of the services rendered for which the allowance was made. A part of the compensation for the services of a trustee is paid out of the township funds which he has in his hands; and the trustee is liable to account for the township funds which may come into his hands, less the amount due to him for such services as are to be paid for out of that fund; and if the allowance was for such services as are payable out of the township funds, and he The of Rev. St. 1881. There is no merit in the contention that the affidavit is insufficient because it does not state whether the premises were inclosed or uninclosed. There was no necessity for any statement on this point; for, whether the premises were inclosed or not, it was a misdemeanor to enter upon them after being forbidden. had township funds to that amount, or in ex- | so by him, the said John A. Cain." cess of the same, on hand at the time of the fense which the affidavit assumes to charge allowance, there would be no indebtedness is that of trespass, as defined by section 1941, existing from the township to Keifer, as trustee, but Keifer's liability for township funds would be reduced the amount due him from such fund for services as trustee. If the allowance to Keifer, as trustee. was for services rendered as overseer of the poor, which was payable out of the funds of the county on order of the board of commissioners, then it would not be a debt the township would have to pay, as contended by counsel for the appellant; and, if he assigned his claim before it was paid, it would be the duty of the assignee to notify the board of commissioners before payment; else a payment to Keifer would be good. State v. Givan, 45 Ind. 267; State v. Kent, 53 Ind. 112; State v. Fleming, 46 Ind. 206: Carey v. State, 34 Ind. 105; Jenkins v. Lemonds, 29 Ind. 294; Doepfner v. State, 36 Ind. 111. In any event, the acts complained of in this case were the individual acts of Keifer, and do not show any neglect or failure of his official duties, as township trustee, creating a liability on the bond. The demurrer to the complaint was properly sustained. Judgment affirmed, with costs. (120 Ind. 229) STATE. FRENCH.1 (Supreme Court of Indiana. Sept. 24, 1889.) TRESPASS-INFORMATION-AFFIDAVIT. 1. Under Rev. St. Ind. § 1941, making it a misdemeanor for one "to enter unlawfully upon the inclosed or uninclosed land of another," an affidavit, as the basis of an information for trespass, need not state whether the land is inclosed or uninclosed. 2. An allegation that defendant unlawfully entered on the "premises" of another sufficiently charges that the entry was on the "land" of another. 3. An affidavit which charges that defendant "unlawfully entered upon the premises" of one C., without further describing the land or place of entry, is insufficient. Appeal from circuit court, Sullivan county; JOHN C. BRIGGS, Judge. The defendant, Henry French, was arraigned on an information charging him with trespass, under Rev. St. Ind. § 1941, which declares it to be a misdemeanor for one "to enter unlawfully upon the inclosed or uninclosed land of another." A motion to quash the information, for the reason that the affidavit on which it was based did not describe the offense with sufficient certainty, was sustained; and from the judgment entered thereon the state appeals. W. C. Hultz and O. B. Harris, for appellant. W. S. Maple, Geo. W. Buff, and John S. Bays, for appellee. ELLIOTT, C. J. The charge against the appellee is made in the following language: "That on the 15th day of April, 1889, Henry French unlawfully entered upon the premises of John A. Cain, in Sullivan county, in the state of Indiana, after being forbidden to do 'Rehearing denied, 22 N. E. 735. It is contended with some force and plausibility that the charge is insufficiently made, because the word "premises" is employed, instead of the word "land." In view of our statutory provisions upon the general subject, and of our decisions, we think the contention cannot be permitted to prevail. One of these statutory provisions is as follows: "Words used in a statute to define a public offense need not be strictly pursued, but other words conveying the same meaning may be used." Rev. St. § 1737 The word "premises" is now commonly used to mean "lands and tenements." Possibly, usage has corrupted the meaning of the word; but the authors of our law and other dictionaries say that one of the meanings of the word is that which we have given it. We hold the affidavit insufficient, because the premises or land was not described. A person prosecuted for trespass has a right to be informed of the place upon which he is charged with having trespassed. Probably no great strictness is required in describing the land; but there must be some description, and it should be sufficiently definite to enable the accused to know the precise charge he is called upon to meet. Judgment affirmed. (120 Ind. 121) TAYLOR et al. v. BOARD OF COMMISSION- Rev. St. Ind. 1881, § 630, providing that "either party may reserve any question of law, decided by the court during the progress of the cause, for the decision of the supreme court. Any question of law so reserved may be taken to the supreme court upon the bill of exceptions showing the decision, or, if it arises on demurrer, upon the pleadings involved, * * " merely points out the way in which questions of law may be reserved, and does not authorize an appeal from an interlocutory order staying proceedings. * Appeal from circuit court, Jay county; A. A. CHAPIN, Special Judge. W. H. Williamson, J. A. Jaqua, D. T. Taylor, and R. H. Hartford, for appellants. Bosworth & Snyder, for appellees. OLDS, J. This is an action upon a contract entered into between the appellants and appellees, by which the appellees employed the appellants as the attorneys for Jay county for a period of three years from December 5, 1887, for a price stated, payable quarterly. The appellants brought suit for one quarter's salary, and recovered judgment |