White v. The State. tion for imprisoning the appellant in the State's prison, however much the court or jury may have felt the importance of pushing an offender against the sacredness of woman's virtue. Especially is this true when the facts show that the woman, by her negative encouragement, was particeps criminis to this offense. The prosecutor insists that the view of the case here accepted will not authorize a reversal, because of the rule that this court will not pass upon the weight of the evidence, and, as contended, if the verdict is contrary to the evidence, the judgment will not be disturbed as contrary to law. We do not weigh the evidence, we simply find that there is no sufficient evidence to support the verdict. One necessary element in the case, intent to ravish, is absent, and the verdict is not only contrary to law, but is contrary to the evidence. We can neither overrule nor criticise the case of Stout v. State, 78 Ind. 492, which holds that where a verdict in a criminal case is not sustained by the evidence, it is contrary to law. No rule of justice or No rule of justice or common sense conflicts with that holding, and any other decision would enforce a narrow technicality by which a citizen of the State could be imprisoned and deprived of his liberty without evidence, and for an offense unknown to the law, justified only by the existence of a charge and a verdict. We commend the course of the attorney-general in his candor of statement and fairness in the argument of this case, as in other cases. Too often the zeal of attorneys leads them to forget that duty does not require them to advocate an unjust cause. In criminal cases the State of Indiana does not ask conviction without evidence to remove all reasonable doubts of guilt. Her representative is neither required to demand nor justified in ask Orb et ux. v. Coapstick. ing a conviction with less. It is upon this principle that the attorney-general practically concedes the justice of this appeal. The judgment of the circuit court is reversed, with instructions to grant a new trial. Filed Jan. 30, 1894. No. 16,591. ORB ET UX. v. COAPSTICK. TRUST AND TRUSTEE.-Trust Fund.-Wrongful Appropriation of.-Complaint, Sufficiency of.-In an action by a cestui que trust for a wrongful appropriation of the trust fund, the complaint alleged, in substance, in the first paragraph, that the money constituting the fund was placed in the hands of the trustee for the purpose of investment upon good security, and for no other purpose; that in violation of such trust, and without the knowledge or consent of the cestui que trust, the trustee used the same in part payment of the purchase-price of real estate which he caused to be conveyed to his wife, who paid no part of the consideration therefor, and that the trustee is notoriously insolvent, so that no part can be collected from him, praying for a personal judgment against the trustee, and that the same be declared a lien on such land. The second, third and fourth paragraphs were the same as the first, except that the second alleged, in addition, that the trustee's wife, at the time she accepted the conveyance, had notice of the fact that the trustee was violating his trust in so investing the money; the third, in addition, that the trustee converted such trust to his own use by investing the same in land, therein described, and took the title thereto in the name of his wife; the fourth, in addition, that the trustee and his wife conspired together for the purpose of cheating and defrauding the plaintiff, and, in furtherance of such conspiracy, so invested the money. Held, that each paragraph stated a cause of action, and was sufficient on demurrer. PLEADING.-Answer.-Pleaded in Bar of Whole.-Bar in Part Only.— Where an answer is pleaded in bar to the whole of a complaint, and bars a part only, it is bad on demurrer. Orb et ux. v. Coapstick. From the Clinton Circuit Court. J. V. Kent and R. W. Irwin, for appellants. COFFEY, J.-The complaint in this case consists of four paragraphs. It is alleged in the first paragraph, substantially, that in the month of January, 1888, the appellee was the owner of a bank check or draft calling for the sum of seven hundred dollars; that the appellant, Fernando C. Orb, who is the brother of the appellee and the husband of his co-appellant, Amanda Orb, learning that she had such draft or check, proposed to her that if she would place the same in his hands he would collect the same and loan the proceeds thereof to some responsible and solvent person, properly and safely secured, so as to bring her an income of eight per cent. per annum; that, relying on his promise and his relationship to her, she did place said draft or check in his hands for the sole purpose of enabling him to loan the proceeds thereof for her, according to his promise as above stated, and for no other purpose; that he collected the full amount of said. draft or check, and in violation of his trust, without the knowledge or consent of the appellee, used the same in part payment of the purchase-price of real estate, which is described, and that he caused the title to said real estate to be conveyed to his wife, the said Amanda Orb; that the said Amanda paid no part of the consideration for said real estate, and that the said Fernando is notoriously insolvent, so that no part of said sum can be collected from him. Prayer for a personal judgment against the appellant, Fernando C. Orb, and that such judgment be declared a lien on the land described in the complaint. The second paragraph is the same as the first, except Orb et ux. v. Coapstick. it alleges that the appellee, Amanda Orb, at the time she accepted the conveyance to the land, had notice of the fact that appellant was violating his trust in investing the money of the appellee as part of the purchase-price of the land. The third paragraph of the complaint is the same as the first, except that it alleges the appellant, Fernando C. Orb, converted the money of the appellee to his own use, by investing the same in the land therein described and taking the title thereto in the name of his wife, Amanda Orb. The fourth paragraph, in addition to the allegations contained in the first, alleges that the appellants conspired together for the purpose of cheating and defrauding the appellee, and, in furtherance of such conspiracy, invested the money in the land therein described, and took the conveyance thereto in the name of the wife, Amanda Orb. To each paragraph of this complaint the court overruled a demurrer, and the appellants excepted. The appellants each answer by way of general denial. The appellant Amanda Orb also filed an affirmative answer in which she averred, substantially, that the land described in the complaint was purchased for the agreed price of one thousand dollars; that the seven hundred dollars in dispute, belonging to the appellee, was paid to the vendor as part of the purchase-price, and that she executed her note for the sum of three hundred dollars for the balance; that the land was conveyed to her in part payment of a debt of one thousand dollars due her from her husband; that, at the time she accepted such conveyance, she had no notice whatever of the breach of trust alleged in the complaint. To this answer the court sustained a demurrer. The cause was tried by the court, resulting in a find Orb et ux. v. Coapstick. ing in favor of the appellee, upon which the court, over a motion for a new trial, rendered judgment. The assignment of errors calls in question the correctness of the ruling of the circuit court in overruling a demurrer to each paragraph of the complaint, in sustaining a demurrer to the affirmative answer of the appellant Amanda Orb and in overruling the motion for a new trial. We think that each paragraph of the complaint states a cause of action against both of the appellants in this case. Where the property of a cestui que trust has been wrongfully converted into another species of property, if its identity can be traced, it will be held, in its new form, liable to the rights of the original owner. The rule is elementary that if any property, in its original form and state, is covered with a trust in favor of the principal, no change of that state and form can divest it of such trust, or give the agent or trustee converting it, or those who represent him in right, any more valid claim in respect to it than they respectively had before such change. The rule applies to all trust property in the hand of volunteers and persons taking it with notice of the character of the fund. 10 Am. and Eng. Encyc. of Law, 62; Lewin on Trusts, volume 2, star page 859; Besham's Principles of Equity, sections 83 and 319; Adams' Equity, 149; Story's Equity Jur., section 1258; Bundy, Receiver, v. Town of Monticello, 84 Ind. 119; Boyer v. Libey, 88 Ind. 235; Riehl v. Evansville Foundry Ass'n, 104 Ind. 70. In this case, so far as shown by the complaint, the appellant Amanda Orb was a mere volunteer to the extent of seven hundred dollars, at least, of the value of the land conveyed to her. It is shown by the first paragraph that she is a volunteer as to the whole tract; in |