as trustee of the bondholders. The sale was confirmed by the court, and the master in chancery was ordered to and did convey the property to appellee the Midland Railway Company, a corporation organized by the purchaser and his associates for the express purpose of taking in its own name the title to the property so sold and purchased. Immediately after the execution of the mortgage the Anderson, Lebanon & St. Louis Railroad Company became and remains insolvent, and ceased work upon its road. After the purchase, the Midland Railway Company took possession of the property, and, at the time this action was commenced, had so far completed the construction of the road through the township that construction trains may pass over it, but it is not in a condition for passenger and freight traffic. The Midland Railway Company is a new and independent corporation, sustaining no relation to the old company. It has not issued, nor provided for the issuing, of any capital stock to Noblesville township on account of the taxes sought to be collected, nor has it made, or offered to make, any adjustment in relation to stock.

Upon the facts so set up in the return, we think it clear that the Midland Railway Company is not entitled to the money voted to the old company, and hence has no interest in the collection of the taxes. There is a clear distinction between appropriations by townships, by way of donations and by way of taking stock in the company. The appropriation in controversy was voted under the act of 1869. Acts 1869 Sp. Sess. 92 et seq. That act, as do all subsequent acts and amendments, recognizes the distinction. The first section of that act provides that when a petition was presented to the county board asking that a township should make an appropriation by "taking stock in, or donating money to, a railroad company," etc. See, also, section 14 of the same act. Also, Acts 1873, p. 185, § 2; Acts 1875 Reg. Sess. 121; Acts 1877 Reg. Sess. 111; Acts 1879, p. 46; Rev. St. 1881, §§ 4045, 4058, 4069, 4070. The people to be taxed have a right to determine in advance, and, by their petition to the county board and by their vote, impose a condition that the amount appropriated shall be by way of taking stock in the railway company. And when they have thus imposed the condition, the money voted cannot be bestowed upon nor successfully demanded by the railway company as a donation. Faris v. Reynolds, 70 Ind. 359; Bittinger v. Bell, 65 Ind. 445; Irwin v. Lowe, 89 Ind. 540; Brocaw v. Board, etc., 73 Ind. 543; Rorer, R. R. 125; Woods, R. R. 306, § 119.

The people of the township might be willing to vote money to be invested in the stock of the railroad company, and entirely unwilling to vote it as a donation. The stock represents the property of the corporation. The township, as a holder of it, would be entitled to vote in the meetings of the stockholders, and would thus, to some extent, have a voice in the government of the corporation, and in the management of its property. In the case in hearing, the amount was not only voted to be invested in stock, but it was voted to be invested in the stock of the Anderson, Lebanon & St. Louis Railroad Company. No one has a right to demand the money without giving the stock of that company in return. The Midland Railway Company had no right to demand the

money as a donation. It cannot demand the money in return for stock, because it has no power to issue the stock of the Anderson, Lebanon & St. Louis Railroad Company; and cannot give its own stock in return, because neither the township nor the tax-payers thereof have agreed to receive its stock in lieu of the stock of the old company. They cannot be coerced into such an agreement. To hold otherwise would be to hold that, although the township votes the money for one purpose, it may be taken and appropriated to an entirely different purpose. It may be observed, too, that the Midland Railway Company does not offer, nor propose to offer, its own stock in return for the money. For the reasons above stated it must be held that the right to the money voted by the township did not and could not so pass to the Midland Railway Company, by the mortgage and foreclosure proceedings, as that it can recover it from the county or township, or demand that the tax shall be placed upon the duplicate and collected. The Midland Company has no right in or to the appropriation that it can in any way enforce, because to accord it any such right would be to impose an obligation upon the township that it never in any way assumed, and to take its money without returning that for which it was appropriated.

This case is altogether different from the cases of Scott v. Hansheer, 94 Ind. 1; Jussen v. Board, etc., 95 Ind. 567; and Board Com'rs Marion Co. v. Center Tp., 2 N. E. Rep. 368, (last term.) In those cases the appropriations were in the way of money donations. In such cases, the purpose of and the consideration for the donation is the building of the railroad through the township. In such cases, neither the township nor the taxpayer has any interest in the corporation or its property; nor do they, by the donation, directly or indirectly, contract for any such interest. When the railroad is built through the township, whether by the original company, or by another company that has succeeded to its rights, the whole purpose of the donation is accomplished. Not so here. Had the original company continued to be the owner of the road, and completed its construction, the township, by the payment of the amount voted and yet unpaid, would have been entitled to the amount in the stock of the company, and thus, as we have said, would have been a part owner of the corporate property, interested in the corporation, and entitled to a voice in the management of its affairs.

Having reached the conclusion we have, it is not necessary for us to examine critically as to whether or not the mortgage was so specific in description as to cover the uncollected appropriation. As it does not appear by anything shown in this case that there is any person or railway company entitled to demand and receive the money should it be collected, the court will not lend its aid to accomplish a useless ceremony, and impose a useless and unjust burden upon the tax-payers of the township, by ordering the tax to be placed upon the duplicate and collected.

The judgment is reversed at the costs of appellee, and the cause remanded, with instructions to the court below to overrule the demurrer to appellant's return to the alternative writ.

Davis and Gelhaus were partners in business for a series of years. During the same time Davis was township treasurer, and was in the receipt of the public funds of the township. With the knowledge, consent, and approval of Gelhaus, Davis deposited the greater portion of these funds in bank, to the firm's credit, in common with the private funds of the partnership; and from time to time debts of the firm, as well as debts due upon orders drawn on the treasury, were indiscriminately paid by the firm's check on this deposit. In 1879 the partnership was dissolved and by mutual consent Davis purchased the stock of goods on hand, and took the notes and accounts receivable to be collected; and out of assets arising from such purchase, and out of collections, he was to pay all partnership liabilities. In a schedule of such liabilities there was over $6,000 due the township, which Davis paid before the hearing in the court below. The books of the firm showed that no attempt was made to treat this deposit of public moneys otherwise than as partnership moneys, and they were used as a common fund, subject only to partnership check. Held: (1) That such deposit and use of the public moneys by Davis, as treasurer, was in violation of section 15 of "An act to establish the independent treasury of the state of Ohio," (2 Swan & C. 1606;) it being a conversion of the public moneys to the use of the partnership of which he was a member. (2) That Gelhaus, having, with full knowledge, consented and approved of this mode of doing business, and having participated in such acts, is in law alike guilty with Davis in such unlawful conversion of public money. (3) That the partnership was liable to the public authorities for the money thus converted. (4) That they are particeps criminis in this transaction, and the law will aid neither as against the other, but will leave them where it finds them. Neither is entitled to relief as against the other, by contribution or otherwise. Upon a dissolution of the partnership, under an agreement that Davis should take all the assets and pay all the partnership liabilities, and account to Gelhaus for one-half the surplus, he paid this liability to the township partly out of partnership assets, and partly out of his own individual means which he advanced, leaving a large balance in his favor, the assets being insufficient for that purpose. This consummated the illegal transaction, and he has no right of contribution from Gelhaus for the money so advanced. (5) That Gelhaus, being liable as a partner to the township for the illegal conversion of the money, and having parted with all his interest in the partnership by the contract of dissolution, reserving only a right to one-half the surplus, is not entitled to an account which rejects the payments made by Davis. The law leaves him where it finds him, with the right only to an account for surplus remaining after crediting Davis with amounts paid on this illegal transaction.

Error to district court, Hardin county.

August 5, 1880, Gelhaus, who was plaintiff below, filed a petition, stating that about May 1, 1865, he and Davis entered into a partnership, and engaged in the grocery business during such period as they might thereafter agree on, and so continued by mutual consent as such partners until February 9, 1880, when by like consent said firm was dissolved. Davis was to take the stock then on hand, collect the assets due the firm, and pay its debts, and from time to time render accounts of his proceedings, and on final adjustment should pay over to Gelhaus v.4N.E.no.7-38

one-half (they being equal partners) of what was left after satisfying all partnership liabilities. In pursuance of this agreement Davis became the sole owner of the stock then on hand, as per invoice, together with all other assets, for the purpose of winding up the partnership. He charges that no statements have ever been made, either before or since the dissolution, of the condition of the firm, and that Davis refuses to make a settlement with him of said partnership business. Also that the business during 15 years was largely profitable. He prays that an account be taken, and that on final hearing Davis be compelled to pay over to the plaintiff whatever may be found due him.

On the twenty-ninth of September, 1880, Davis answers, denying that the business had been largely profitable, and denying that he had refused to render statements to his copartner. He sets out the agreement of dissolution, by which he was to take the stock on hand at the invoice, the notes and accounts due, and convert the same into money, and pay off the partnership liabilities as far as they would go. He attaches several exhibits showing the condition of things at the time of dissolution, and also notes and accounts collected on firm account, and the liabilities of the firm paid since the ninth of February, 1880. Among these is Exhibit C, which he avers contains a true statement of the liabilities of the firm at the date of dissolution, amounting to $9,830.24. Of this amount $6,893.22 are alleged to be liabilities of the firm as public moneys belonging to Pleasant township, Hardin county. Between the time of dissolution, February 9th, Davis had paid, of these public moneys, sufficient to leave a balance of $5,424.70 at the date of filing his answer, towit, September 29, 1880.

Gelhaus died October 4, 1880, and Curtis Wilkin was appointed his administrator, and on the sixth of January, 1881, filed a reply stating that he has no knowledge of the matter set up in the answer, and therefore denies each allegation thereof except as to the existence of the firm and the agreement for dissolution. He repeats the prayer for an account, and for other and further relief. The case was then referred to a master to hear the evidence, and to report his findings of law and fact to the court.

The real and only matter in controversy, as shown by the proceedings, is as to whether the debt due Pleasant township was a partnership liability, or the individual liability of Davis. At the time the case was heard in the common pleas, Davis had paid all liabilities, amounting to $9,709.30, which included the amount due to the treasurer of Pleasant township. The common pleas found that this liability to Pleasant township was a partnership liability, and that its payment by Davis came within the terms of the agreement of dissolution, which authorized him to pay all partnership liabilities of the firm, and that, as such liability had been paid by him, he was entitled to a credit therefor the same as for any other liability of the firm. Wilkin, as administrator, took an appeal to the district court, where the judgment of the common pleas was reversed; holding that, as to these public moneys owing to Pleasant township, they were not partnership liabilities; and the court refused to give

him credit for the amount paid in satisfaction of them after dissolution, and struck from his credits numerous orders paid on account of the firm before his answer, and refused to allow him credit for the residue owing to the township, which he had paid before the hearing in the common pleas.

As to the amount of "firm liabilities, as set out in second defense of answer of defendant, $5,424.70, alleged to be due the defendant as treasurer of Pleasant township of said county, the court do find that, during the entire period of said partnership, Archibald M. Davis was the treasurer of Pleasant township, in said county, and of the incorporated village of Kenton during the greater part of said time; that during said partnership, and from September, 1865, to the dissolution thereof in 1880, said Archibald M. Davis, as treasurer as aforesaid, did receive of said public money the sum of $171,178.56, and during said period did disburse thereof $164,752.57, leaving a balance due said corporation and township, at the date of dissolution of said firm, of $6,415.99; that from February 17, 1869, to the dissolution of said firm in 1880, said Archibald M. Davis did deposit, of said public moneys received as aforesaid, in bank, to the credit of the firm of Davis & Gelhaus, the sum of $155,285.05; that no separate account was kept in bank of the public moneys so deposited, but the same was carried into and made a part of the bankaccount of the firm of Davis & Gelhaus; that it was the custom of said Archibald M. Davis to pay corporation and township orders, the amount not being shown by the evidence, from the money he drew and received as aforesaid, and, after such payment, to deposit the balance remaining in bank to the credit of Davis & Gelhaus; that no partnership account was kept with Archibald M. Davis showing the amount of moneys which the firm received from said Archibald M. Davis as treasurer, except as the same appeared in the bank pass-books; that August Gelhaus knew that said Archibald M. Davis was depositing the public moneys aforesaid to the credit of the firm of Davis & Gelhaus in bank, and made no objection to the same, but, on the contrary, was a party to and approved the same; that, at thé dissolution of said firm, statements were made of the liabilities of said firm of Davis & Gelhaus, and said statements contained (among other liabilities) the balance due from Archibald M. Davis, as treasurer aforesaid, to said corporation and township at date of the dissolution of said firm, Exhibit C in defendant's answer being a copy thereof, and that said statements were furnished to each of the members of said firm, and no objection made thereto until the bringing of this suit; that at the dissolution of said firm there was a balance in bank to the credit of said firm (being the bank where said public moneys were deposited as aforesaid) of $760.08, all except said sum being checked out; that the proof fails to show what was done with said sum of $155,285.05 of public moneys so deposited as aforesaid, except that the same, as well as all firm deposits, had been checked out of bank (except said balance of $760.08) at the date of the dissolution of said firm; that the conclusion from the foregoing is that in the absence of proof as to what was done with the said $155,285.05 of public moneys deposited as aforesaid, that