although others were presentat conversations between them respecting the subjectmatter of the agreement, and also at the time the note was signed. The will of Ruth M. Wells was read in been insisting upon its genuineness. The rules of practice will not permit a party to call a witness closely connected with the adversary cause, and from whom he has no reason to expect favorable testimony, evidence, over the objection of the appel- | and then to assail the character of the lant. Her estate was sought to be charged with the payment of the note, upon the theory that she was the devisee of Almira Wells; and her will, disposing of the property devised to her by the deceased sister, was evidence of her acceptance of the devise. This fact might have been taken as true upon the proposition witness by impeachment. By this means the adversary's cause might often be unfairly prejudiced, and justice be thwarted. The case of Becker v. Koch, 104 N. Y. 394, 10 N. E. Rep. 701, is cited in support of the right to the rejected evidence, but it only requires a superficial examination of that case to discover that it does not lend any that the law will presume the acceptance | support to such right. On the other hand, of a beneficial provision in the absence of evidence showing a contrary intention, but the admission of evidence also of such acceptance cannot be regarded as reversi. ble error. Upon the trial, appellant introduced Mrs. Scott as a witness, and examined ber quite fully respecting the transaction involved in the suit, in all its phases. Her testimony was adverse to the interest of appellant, and the latter afterwards called other witnesses, and proffered testimony impeaching the credit of Mrs. Scott by proof of bad character, which was rejected by the court. This is relied upon as error. Section 507, Rev. St. 1881, provides that a party producing a witness shall not be allowed to impeach his credit byev it is in full accord with the current of authorities upon the proposition that an indispensable witness is one a party is compelled to produce to satisfy the requirements of the law. There was no error in excluding the evidence. In her testimony Mrs. Scott stated that she was present when the note was signed, and that two other persons were there besides herself and Almira Wells. She was asked by counsel for appellant if she had not been engaged as housekeeper for one Dr. Blodes, which she admitted; and she was then asked if she did not state to Dr. Blodes during that time that no one was present when the note was signed except herself and Almira Wells. This question she answered in the negative. Then coun idence of bad character, unless it was in-sel propounded the following questions: dispensable that the party should produce him, or in case of manifest surprise, when the party shall have such right. This is but the enactment of thecommon-law rule as it is recognized and applied in most of the states of this country and in England. | by appellant, and asked if Mrs. Scott did “Did you not state it to Mrs. Long? Did you not state it to Mrs. Bittinger?"both of which were answered in the negative. After Mrs. Scott was dismissed from the witness stand, Bittinger was called The right of impeachment is not claimed in this case upon the ground of surprise, as Mrs. Scott is the mother and next not state to him at a given time and place that no one was present when the note was signed except herself and Miss Wells. friend of appellee, and verified the state- | Objections weresustained to the question, ment of the claim, so appellant had no reason to expect favorable testimony from her; but it is insisted that she was an in upon the ground, among others, that no foundation had been laid for it. The only purpose of evidence which the question dispensable witness. Several witnesses | could have elicited was to impeach Mrs. had already testified to conversations with the maker of the note, in which she admitted her agreement to make substan Scott by proving a contradictory statement out of court. A party has the right to impeach his own witness, who has tes tial provision for the education of appellee | tified against him, by proof of contradic in consideration of her name; and others, that they were present, and saw her sign the note and deliver it to Mrs. Scott for appellee's use and benefit. The rule is quite general that where one is required to produce a particular witness to satisfy the demands of the law, as the subscribing || witness to a will, he is not bound by the testimony of such witness, but may impeach his credit by evidence of bad character. Thornton v. Thornton, 39 Vt. 122; | done in this instance, and consequently Harden v. Hays, 9 Pa. St. 151; Dennett v. Dow, 17 Me. 19; Olinde v. Saizan, 10 La. Ann. 153; Williams v. Walker, 2 Rich. Eq. 291; 1. Greenl. Ev. § 443. Appellant was under no legal obligation to use Mrs. Scott as a witness, and, if the exigencies of her case were such as to make it seem expedient to do so, she will not be permitted to dispose of the prejudicial evidence by attacking the character of the witness. Appellant was in quest of evidence to prove the note was a forgery, and she had no reason to expect such testi the court committed no error in sustaining the objection to the question asked Bittinger, if in other respects the evidence was competent. In their offer to prove, counsel included the names of Dr. Blodes and several others, by whom they asserted such proof could be made, but did not call any of them to the stand. No question can be raised in this manner. Ralston v. Moore, 105 Ind. 243, 4 N. E. Rep. 673. Over a year elapsed from the first conversation upon the subject-matter of the controversy until the note was given, and mony from Mrs. Scott, who had all along | appellant offered evidence tending to prove tory statements, under the last clause of section 507, supra. Hull v. State, 93 Ind. 128; Conway v. State, 118 Ind. 482, 21 Ν. E. Rep. 285. But it is always necessary to lay the foundation for impeachment by calling the attention of the witness who is sought to be impeached to the time and place of the statement, so he may have the opportunity of admitting or denying it intelligently. That was not that during this interim Almira Wells entertained a dislike for Mrs. Scott, and regarded her as a woman of bad character. The evidence thus offered bore upon the disposition of Miss Wells towards Mrs. a peculiar quality, and that the writing in the body of the note was with the same kind of ink as the signature. He also testified to having made microscopic enlargements of the signature and portions of Scott in the abstract, and did not purport | the writing in the body of the note for to consist of expressions or acts of hostility between them, nor of declarations in connection with any act upon the part of Miss Wells. The evidence was excluded. It is insisted with much earnestness and plausibility that the proffered evidence | testified to the jury substantially as he the purpose of comparing them, and he gave it as his opinion that the name was signed to the note by the person who filled the blank space in the body. Upon the rebuttal, appellee recalled Jones, who was competent as part of the res gestæ, upon the theory that it manifested a persuasion of the mind inconsistent with a dis-clared that he filled out the note, but did had testified to the court upon the question of the execution of the note. He de not write the signature. The court permitted the appellee, over appellant's objection, to introduce evidence of the good character of Jones in support of his credibility. There was no attempt to impeach him by evidence introduced for that purpose, but the supporting evidence was jus position essential to create a contract. While the concurrence of the minds of the parties is the essence of every contract, yet, pending the negotiations, the declarations of one of the parties, unconnected with any act forming part of the transaction, but which tend only to exhibit the disposition of the mind of the declarant | tified upon the ground that the testimony towards it, will not be received to establish or overthrow the contract. Such declarations are not part of the res gestæ. Declarations instinctively emanating from an act which is the subject of litigation may be received in evidence as part of the res gestæ, where they tend to elucidate or give character to the litigated act. In transactions covering a considerable period of time, such declarations, in connection with any act which forms a substantive part of the transaction, are admissible under this rule. But evidence simply exhibiting the subjective condition of the mind in relation to the trans of Tolman imputed to Jones the crime of forgery, and thus indirectly impeached his standing as a witness. Tolman's testimony bore directly upon the principal issue of fact before the jury, and the disparagement of the credibility of Jones resulted from a contradiction between them upon that issue, and was entirely incidental. The question for decision, then, is, can a witness who is contradicted by other evidence upon a direct issue in the case be supported by proof of good character, where the contradiction imputes moral turpitude, or the commission of a crime? It is a universal rule that evi action will not be allowed. No declara-dence of the good character of a witness is tion is admissible as part of the res gestæ if made in the absence of the opposite party, unless connected with or related to some part of the transaction. 1 Whart. Ev. § 266 et seq. not allowable unless his character has been put in issue in some manner. The discovery of the truth is the aim of every judicial investigation, and the rules of evidence are designed to subserve that end. They cannot be employed to vindicate the character of a witness, except so far as may be required to satisfy the demands of the investigation in hand. Every witness is presumed by the law to have a good character, and evidence to support it is not permitted, except in instances where it has been attacked. The credibility of a witness may be impeached by evidence of bad character in general, by proof of contradictory statements made upon a material issue, and by proof of a conviction of an infamous crime; and, upon cross-examination, his relations to the parties, interest in the suit, and other matters may be inquired into as affecting his standing as a witness. It Before the note could be read in evidence, it was incumbent upon appellee to prove its execution, prima facie at least; and for this purpose several witnesses were introduced, among whom was one George W. Jones. He testified that Mrs. Scott came to his office on the day the note was dated, and procured him to fill in the blank spaces, by inserting the date, the names of payees, and amount. She told him the note was to be signed by Almira Wells, at whose request she was having it written. After he had filled out the note, Mrs. Scott took it away with her. Jones did not see the note signed. and was not acquainted with Almira Wells' signature. The bill of exceptions recites that this evidence was addressed | is a universal rule that, where the general exclusively to the court, but it does not appear whether it was given in the presence of the jury or not. After sufficient evidence had been heard by the court to warrant the reading of the note to the jury, it was so read, and appellee rested her case. Several witnesses were then introduced upon the other side, who claimed to be familiar with the handwrit-proof of character may be made in sup character of a witness has been assailed, he may be supported by evidence of good character; but in some of the jurisdictions in this country a witness cannot be sustained by evidence of good character where his credibility has been impeached by any of the other methods. The better and more general rule is, however, that ing of Almira Wells, and who testified that, in their opinion, she did not sign the note. One Tolman was called as an | the law. Rex v. Clarke, 2 Starkie, 241; port of a witness who has been impeached by any of the methods known to expert, and testified that he had analyzed and examined the ink with which the note was written, and found it to be of People v. Rector, 19 Wend. 569; Webb v. State, 29 Ohio St. 351; People v. Ah Fat, 48 Cal. 61; Prentiss v. Roberts, 49 Me. 127; Isier v. Dewey, 71 N. C. 14; Lewis v. State, I moved from Mrs. Scott, and she conduct 35 Ala. 380; Davis v. State, 38 Md. 15; Paine v. Tilden, 20 Vt. 554. Such, also, is the rule in this state. Harris v. State, 30 Ind. 131; Clem v. State, 33 Ind. 427. But all of these cases are grounded on the principle that supporting evidence is admissible only where character has been putin issue by a direct impeachment of the witness. Where there is a mere contradiction upon an issue in the case, evidence of good | settlement of the estate of Almira Wells. ed the negotiations with the maker, exclusively. It was delivered to her, “to be taken care of" for appellee, and was to be applied in educating the latter. Counsel for appellant very ingeniously argued that the legal title to the note was in Mrs. Scott, either for herself or as trustee for appellee; and in either event, they contend, action upon it was barred by the The instructions tendered would have presented these views of the law to the jury. Section 2310, Rev. St. 1881, as amended in 1883, (Elliott's Supp. § 385,) declares that all claims which shall not be filed against the estate of a decedent at least 30 days before final settlement shall be barred. Section 2442 provides that the heirs, devisees, or distributees of a decedent shall be liable after final settlement to the extent of the property received by them, to any creditor who was insane, an infant, or out of the state six months prior to the settlement. It may be conceded that, as a general rule, the statute of limitations runs against the trustee of an express trust, and where he is barred nized by the rules of evidence. A contrary | the cestui que trust is barred also. Wych character will not be heard. Pruitt v. Cox, 21 Ind. 15; Gebhart v. Burkett, 57 Ind. 378; Presser v. State, 77 Ind. 274; Fitzgerald v. Goff, 99 Ind. 28; Rogers v. Moore, 10 Conn. 13; Haywood v. Reed, 4 Gray, 574; Fahey v. Crotty, 63 Mich. 383, 29 N. W. Rep. 876; Boardman v. Woodman, 47 N. H. 120; State v. Archer, 73 Iowa, 320, 35 N. W. Rep. 241; Norris v. Stewart's Heirs, 105 N. C. 455, 10 S. E. Rep. 912. And this is true though the contradiction is of such a character as to consequently impute fraud, immorality, or crime. Character is not in issue, in contemplation of law, so as to admit supporting evidence, unless the witness is impeached directly by some method recog doctrine was declared in the cases of George v. Pilcher, 28 Grat. 299, and Tedens v. Schumers, 14 III. App. 606, but these cases are in conflict with the great body of the authorities, and cannot be sustained upon principle. They seem to recognize a right in the witnesses to a personal vindication, independent of the rights of the litigants; but this isa palpable perversion of the power of courts. In the case of Merriam v. Railroad Co., 20 Conn. 354, an exception was made in favor of a witness who was a stranger to the court and jury, allowing such witness to be supported by evidence of good character when he was simply contradicted by other evidence; but this case is without support in precedent, and the rule announced is obviously impracticable. The case of Fisher v. Hamilton, 49 Ind. 341, lends no support to appellee's position. In that case the only question decided by the court was thata party who testifies is entitled to the same rights and subject to the same rules as any other witness. No opinion was intimated upon the question raised in the present case. But it is insisted, if the court erred in admitting the evidence, the error was harmless, and should not result in a reversal of the judgment. A witness whose credibility has not been assailed, but who is sup. ported by evidence of good character, is very apt to be credited by the jury with a standing above that given to other witnesses who are not so supported. Such evidence is not without the capacity to inflict harm, and its erroneous admission has been regarded by the supreme court as reversible error. Johnson v. State, 21 Ind. 329; Brann v. Campbell, 86 Ind. 516. For this error the judgment must be reversed. v. India Co., 3 P. Wms. 309; Wilmerding v. Russ, 33 Conn. 67; Williams v. Otey, 8 Humph. 563; Coleman v. Walker, 3 Metc. (Ky.) 65; Hall v. Bumstead, 20 Pick. 2; Marsh v. Dooley, 52 Cal. 232; Grimsby v. Hudnell, 76 Ga. 378; Collins v. McCarty, 68 Tex. 150, 3 S. W. Rep. 730; Chase v. Cartright, 53 Ark. 358, 14 S. W. Rep. 90. In such cases the right of action at law is exclusively in the trustee, and he is responsible to the cestui que trust for any loss of the estate occasioned by his negligence. But the practice act in this state adopts the equity rules, under which all actions, with few exceptions, shall be brought in the name of the real party in interest. The exceptions are contained in section 252, Rev. St. 1881, which provides that an executor, administrator, trustee of an express trust, or a person expressly authorized by statute, may sue without joining the person for whose benefit the action is prosecuted. This section defines a trustee of an express trust to be "a person with whom or in whose name a contract is made for the benefit of another." To create a trust under this statute the contract must be made in the name of the trustee, thereby vesting the legal right in him for the benefit of the cestui que trust. The mere conducting of a treaty by one person, which results in a contract for the benefit of another, does not create the relation of trustee and cestui que trust unless the contract is made in the name of him who negotiates it. Nor will the mere delivery of property to one person for the benefit of another create that relation, within the meaning of the statute under consideration. The legal title to the note in question was never in Mrs. Scott exclusively. She had no beneficial interest in it, nor was it made in her name for the benefit of appellee. She was but an alterna The remaining question relates to the refusing of instructions requested by appel-tive payee, and the legal title to the note lant. The note was payable in the alternative, either to "Julia Scott or Almira Scott, her child." The consideration was no more in her than in appellee, who was the equitable owner of it. Under the Code of this state, in view of the facts dis closed by the evidence, the right of action upon the note was always in appellee as the real party in interest. If the note had been payable to Mrs. Scott for the benefit of appellee, the title would have been in the former, and her right to maintain suit upon the note would have been complete. Heavenridge v. Mundy, 34 Ind. 28. But it was not so written. Furthermore, in an action upon an instrument payable to two or more persons in the alternative, it is necessary, under the common-law practice, for all of the payees to unite as plaintiffs. Walrad v. Petrie, 4 Wend. 575; Osgood v. Pearsons, 4 Gray, 455; Willonghby v. Willoughby, 5 N. H. 245; Westgate v. Healy, 4 R. I. 523; Quinby v. Merritt, 11 Humph. 440; Musselman v. Oakes, 19 Ill. 81; Parker v. Carson, 64 N. C. 563; Blanckenhagen v. Blundell, 2 Barn. & A. 417. Section 267, Rev. St. 1881, seems to contemplate that where several persons have a right of action, and some of them are harred by the statute, such bar shall not affect the right of others. In any view, it must be held that appellee, on account of her infancy, was not prejudiced by the settlement of the estate of Almira Wells. The instructions refused were not applicable to the evidence. Some importance, in the argument of counsel, is attached to the averment in the statement of the claim that the note was "executed and delivered" to Mrs. Scott, but that cannot be regarded as of vital consequence. It is not necessary to specifically plead the title of the assignee in an action upon a promissory note, further than to allege its indorsement by the payee, and, as the title to the note in this case was not in issue under the plead. ings or evidence, the averment of the character in which Mrs. Scott received the note may be treated as surplusage. The judgment is reversed for the error pointed out, with instructions to the court below to grant a new trial. (Appellate Court of Indiana. Oct. 12, 1892.) MANDAMUS TO COUNTY BOARD-REfusal to PAY MONEY INTO COUNTY TREASURY. Where a board of county commissioners sustains a demurrer to a complaint of the attorney general, demanding the recovery of certain money, paid into the treasury of such county for the credit of the school fund, but never reported to the superintendent of public instruction, the proper remedy is an appeal to the circuit court, and not an application for mandamus to compel the board to allow such recovery. Appeal from circuit court, Shelby county; L. J. HACKNEY, Judge. Action by the state, on the relation of Louis T. Michener, attorney general, against the board of commissioners of Shelby county, to recover certain fines and additions to the school fund of that county. Demurrer of the defendant to complaint was sustained, and judgment entered thereon. Plaintiff appeals. versed. Re Michener & Gillett, for appellant. O. J. Glessner, for appellee. Fox, J. This action was brought by the state of Indiana, upon the relation of the attorney general, against the board of commissioners of Shelby county, to recover the sum of $514.68 "on account of fines and other additions to the school fund of said county," which the complaint charged was due from said county. The case was originally brought before the said board of commissioners, and, that court having sustained a demurrer to the complaint, an appeal was taken to the circuit court. In that court an amended complaint was filed, to which a demurrer was sustained, and, the plaintiff below refusing "to further amend his complaint," a judgment was rendered upon the demurrer in favor of the defendant. From this judgment the plaintiff appeals to this court, and assigns for error the action of the court below in sustaining the demurrer to the complaint. The merits of the controversy will be better explained by setting forth the entire complaint than otherwise. As it appears in the record it is as follows: "The plaintiff, for an amended complaint, complaining of the above named defendant, says that plaintiff's relator is, and for more than two years last past has been, the duly elected, qualified, and acting attorney general of the state of Indiana; that defendant is indebted to plaintiff, on account of fines and other additions to the school fund of said county, paid into its treasury, over and above the amount reported by said defendant to the superintendent of public instruction, as follows. June, 1854. Amount received over and 66 1862. Amount received over and above amount reported.... 1863. Amount received over and above amount reported.... Estray fund not reported... 15 00 41 62 211 46 Total...... $539 58 -That, in the year 1864 said county reported to the credit of said fund the sum of $24.90 in excess of amount received by it in that year, thereby making the net amount received by it, not reported, as aforesaid, the sum of $514.68. That the amount last mentioned is and has long been due from defendant to plaintiff on account of its common school fund, as appears from the several dates of the above account; and said sum of $514.68 is wholly unpaid. Wherefore the plaintiff prays judgment for $514.68, which is to be receipted back by the relator into the county treasury as a part of the permanent school fund; and the plaintiff asks for all other relief." Thus it appears that the judgment of the court below upon the issue raised by the demurrer to the complaint is the only question submitted for our consideration. It is said in appellant's brief that "counsel for appellee contended in the court below that the amended complaint was insuffi cient, because the plaintiff should have sought the reinedy of mandamus.” In support of the proposition that this action was properly brought, and that the appellant was not required to seek "the remedy of mandamus," the following authorities are cited: State v. Board Com'rs St. Joseph Co., 90 Ind. 359; Board Com'rs Jackson Co. v. State, 106 Ind. 270, 6 N. E. Rep. 623; Board Com'rs Bartholomew Co. v. State, 116 Ind. 329, 19 N. E. Rep. 173; Board Com'rs St. Joseph Co. v. State, 120 common school fund shall remain a perpetual fund, which may be increased, but shall not be diminished. It is the property of the state. "Fines and other additions to the school fund" become a part of the permanent principal of the fund. No part of this principal can be divested and applied to uses other than that for which the fund was created. Board Com'rs Bartholomew Co. v. State, 116 Ind. 329, 19 Ν. E. Rep. 173. Counties, in receiving school funds, receive the same as trustees, and in Ind. 442, 22 N. E. Rep. 339. Counsel for ap-administering that trust they are held to pellant further say that the supreme court of this state held "many years ago that section 5668, Rev. St. 1881, authorized the attorney general not only to ascertain the amount due in the cases therein provided for, but also to bring suit in all such cases." In support of this statement, the case of State v. Deany, 67 Ind. 148, is cited. Counsel for appellee has not favored us with a citation of any authorities. The argument in his brief is condensed in the following statement, which we take therefrom: "There was a fund in the hands of the county treasurer, where it properly belonged, but was improperly credited to the county revenue fund. That being so, it required only an application to the county board of commissioners to have the treasurer credit it on the books to the common school fund. That would have been the proper way to have corrected the error, and would have been a ministerial act on the part of the board, and would have accomplished the proper purpose; and, if such motion had been made before said board, and the motion overruled, to correct such error the only and proper remedy was by mandamus, and not by appeal. The court below took this view of the subject, and sustained the demurrer." In the complaint it is alleged that the defendant is indebted to the plaintiff "on account of fines and other additions to the school fund of said county, paid into the treasury;" but it is not alleged that the amount so paid "was improperly credited to the county revenue fund." As to what disposition was made of the money after it was paid into the county treasury, the complaint does not inform us. It does inform us, however, that the amount stated was "not reported by said defendantto thesuperintendent of public instruction." The complaint is conspicuous for its brevity, and it seems to have been the object of the pleader in preparing it to impart as little information as possible. The demurrer to the complaint admits that the money was paid into the county treasury, and not added to the school fund, as by law required. We must there fore infer that some other disposition was made of it; that it was applied to some other purpose. If the money, instead of being added to the permanentschool fund, was applied to other purposes for the benefit of the county, it was a virtual conversion of the money to the use of the county. If the money was so appropriated, we are not convinced that a writ of mandate was a proper remedy in the premises. The state of Indiana isinterested in the preservation of the common school fund. The constitution provides that the principal of the a strict accountability. They have no power to divert the fund, "directly or indirectly, to any other purpose than that to which it is directed by express law." County of Rush v. State, 103 Ind. 497, 3 N. E. Rep. 165. Section 187 of the constitution, (Rev. St. 1881,) provides that "the several counties shall be held liable for the preservation of so much of the said fund as may be intrusted to them, and for the payment of the annual interest thereon." See, also, section 4326, Rev. St. 1881. Such being the nature of the trust, the statute of limitations cannot be interposed in an action brought to recover any part of the fund that may have been divested. State v. Board, 90 Ind. 359; Newsom v. County of Bartholomew, 103 Ind. 526, 3 N. E. Rep. 163. Counties are required to pay interest on school fundsintrusted to them, whether they have been loaned or not. Board Com'rs Hamilton Co. v. State, 122 Ind.334, 24 N. E. Rep. 347. Mandamus is classed with remedies termed "extraordinary," and only lies in cases where ordinary civil actions do not afford adequate remedies. Harrison School Tp. v. McGregor, 96 Ind. 185. This principle is well settled in the books. The theory of thecomplaint is that the money sought to be recovered was paid into the treasury many years ago, "and not credited to the school fund." It would be unreasonable to suppose that the money has lain idle in the hands of the treasurer all these years, and not applied to any purpose. The treasurer to whom it was paid went out of office long ago, ashavea number of his successors. Acounty treasurer, in entering upon the duties of his office, takes the books and records thereof as he finds them, and the money on hand should appear credited to the proper funds. He is invested with no power to transfer money from one fund to another. In this case, it having come to the knowledge of the attorney general that the money in question for some reason had been misappropriated, he filed his complaint with the board of commissioners and demanded a recovery of the money, in order that it might be receipted back into the county treasury by him, and properly credited to the school fund. The board refused his demand by sustaining a demurrer to his complaint. He appealed to the circuit court, and there demanded a judgment for the money, in order that the purpose for which thesuit was brought might be accomplished. This, we think, he had a right to do, and the form in which the action was brought afforded a full and adequate remedy, and was fully justified by the decision of the supreme court in the case of State v. Denny, 67 Ind. |