anything that here appears, the predecessor of the appellant may have fully performed his part of the work.

In another respect there is a defect in the appellant's complaint, even upon the concession that his general theory is correct. If there can be any recovery at all in a case of this class, it must be shown that, before proceeding with the work, the auditor notified the board of commissioners that the work ought to have been done by his predecessor, and that he would look to the county for compensation. The auditor had no right to proceed, granting the soundness of his own theory, without consultation with the commissioners. It was not for him to decide for himself that the work ought to have been done by his predecessor, and that the county must pay him for doing it. The county auditor's power is hardly so autocratic as to permit him to make and enforce such a decision. Judgment affirmed.

(105 Ind. 371)

HOFFMAN V. BUTLER.

Filed February 16, 1886.

PROMISSORY NOTE-ACCOMMODATION INDORSER-SURETY-SUBROGATION.

Where a party receives no part of the consideration of a promissory note, but indorses it at the request of one of the two joint makers, he is an accommodation indorser; and, as he occupies substantially the same position as a surety, he may, upon payment of the note, be subrogated to the rights of the holder.1

Appeal from Perry circuit court.

H. J. May, for appellant.

Connor & Henning, for appellee.

ELLIOTT, J. The appellant, Wendell Hoffman, and Thomas A. Clark were sureties on a bond executed by Aaron Blackford to the Remington Sewing-machine Company. The principal in the bond violated its condition, and his sureties became liable to the obligee. The debt due the latter was compromised, and a note was executed for the sum agreed to be paid. This note was signed by Clark and Hoffman, and was indorsed by John Marti and the appellee, James M. Butler. Suit was brought on the note and judgment obtained. One-half of the amount of the debt evidenced by the note was paid by Butler, and one-half by the other indorser, John Marti. Clark testified that he and Hoffman were the original debtors, and that they were the principals in the note. In the course of his examination as a witness Clark was asked: "Was Wendell Hoffman surety for you in any of these things?" and he answered: "He was He and I were principals on the note, and Butler and Marti were sureties." Butler testified, among other things, as follows:

not.

"I signed the note as surety for Clark and Hoffman,-signed it on the back at Clark's plow factory. He asked me to sign it. Hoffman never asked me to sign

For full discussion of the question of subrogation, see Binford v. Adams, (Ind.) 3 N.

E. Rep. 753, and note, 756, 757; and Smith v. Dinsmoor, (Ill.) ante, 648.

the note. Mr. Hoffman never, expressly or impliedly, requested me to sign the note as surety for him. I regard Hoffman as a principal in the note."

This evidence very satisfactorily shows that no part of the original consideration was received by Butler, but that it inured entirely to the benefit of the joint makers of the note. The position occupied by Butler is therefore that of an accommodation indorser for two joint makers, who appeared upon the face of the note to be primarily bound for the debt evidenced by it. He did not undertake to indorse the note for the accommodation of one of the joint makers, but for both; and, as the note had not been delivered, it must be held, in the absence of countervailing evidence, that both of the joint makers stood to him substantially as principals. 2 Daniel, Neg. Inst. 1332a; Baylies, Sur. 470-475. The note was not a completed instrument until delivery, and the possession of it by one joint maker impliedly authorized him to secure another indorser before completing it by delivery. This is just and equitable, and does the appellant no harm; for it can make no difference to him whether he pays the amount of the note to the original creditor, or to the person who indorsed it for accommodation without receiving any consideration. The makers are liable to pay the note, for they received the consideration, and it would be unjust to cast that burden upon one who had received no benefit. We are clear that the appellee has a right to recover the amount paid by him, and to be subrogated to the rights of the original creditor.

Appellant relies upon a general statement contained in section 180, Brandt, Sur., but the general statement will be found, on examination, not to apply to such a case as the present. The single case cited by that author contains this language:

"The counsel for the plaintiff assimilates the case to that of an indorser on a bill of exchange or promissory note, who has paid all and taken up the paper, or who has paid part. He may maintain assumpsit for money paid to the use of the acceptor of the bill or drawer of the note. Pownal v. Ferrand, 13 E. C. L. 203. The answer to this argument is that the indorser of a bill or note is considered in law a surety. A bill is an undertaking by the acceptor, and a note by the drawer, to pay the sum named at all events, and each subsequent party, by his indorsement, undertakes to pay it upon the default of any prior party. Hence, by the nature of these instruments, each subsequent party is a surety for every prior one.

It thus appears that when we get to the foundation of the authority relied upon by the appellant, it is flatly and strongly against him. Judgment affirmed.

1. ATTORNEY-AUTHORITY TO APPEAR PRESUMED ON COLLATERAL ATTACK. The authority of an attorney to appear cannot be questioned in a collateral attack.

2. RECEIVERS-STATUTE-CONSTRUCTION -"COURT" AND "JUDGE" SYNONYMOUS. The words "court” and “judge," as used in the statute providing for the appointment of receivers, (Rev. St. 1881, § 1222 et seq.,) are to be regarded as synonymous terms.

8. SAME

POWER OF JUDGE IN VACATION - VOLUNTARY APPEARANCE MENCEMENT OF ACTION.

Where one of two partners appears before a judge in vacation, and files a complaint against the other partner, asking, among other things, for the appointment of a receiver.-the cause being one over which the court would have jurisdiction in term-time, and the judge thereof having, by statute, the same power in vacation as the court in term,-and such other partner voluntarily appears at the same time, and files his answer, the judge has jurisdiction over both subject-matter and parties, and the action will be deemed to have commenced at the time of such appearance.

4. SAME-ORDER APPOINTING IN VACATION-COLLATERAL ATTACK.

Where a judge has power to appoint a receiver in vacation, and properly acquires jurisdiction of the persons of the parties, his orders or proceedings in the matter cannot be collaterally attacked.

5 SAME-NO CONFLICT BETWEEN VOLUNTARY ASSIGNMENT ACT AND CODE. There is no substantial conflict between the statute governing voluntary assignments and the provisions of the Code relative to the appointment of receivers, and both should stand, although the same purpose may be accomplished under either.

MITCHELL, J., dissenting.

Appeal from Marion superior court.

Ferd. Winter, for appellant.

Harrison, Miller & Elam and Ralph Hill, for appellee.

Howк, J. This cause is now here for the second time. The opinion and decision of the court, when the case was first here, are reported under the title of Pressley v. Harrison, 102 Ind. 14; S. C. 1 N. E. Rep. 188. After the cause was remanded, in obedience to the mandate of this court, the superior court at special term overruled the defendant's demurrers to appellant's complaint theretofore filed. Thereafter, the appellant, Pressley, filed a second paragraph of complaint. To the entire complaint, the appellee, Lamb, separately answered in two paragraphs; but the first paragraph, being the general denial, was subsequently withdrawn. Appellant demurred to the second paragraph of appellee's answer, upon the ground that it did not state facts sufficient to constitute a defense to his (appellant's) action. This demurrer was overruled by the court at special term, and appellant at the time excepted, and, failing and refusing to reply or plead further, the court adjudged that he take nothing by his suit, and that appellee, Lamb, recover his costs herein. Upon appeal, this judgment of the court at special term was affirmed by the general term; and from the judgment of the general term appellant, Pressley, now here prosecutes this appeal. By a proper assignment of error here, he has brought before this court the errors assigned by him in general term. By these errors he calls in question the sufficiency of the facts stated in the second paragraph of appellee's answer to constitute a defense to his (appellant's) action, and the decision of the court at special term in overruling his demurrer to such second paragraph of answer.

It does not appear from the record before us that appellant's original complaint, or what may now be called the first paragraph of his com

plaint, has been amended or materially changed since this cause was here before. The important facts stated in such original complaint are given in the opinion of the court in Pressley v. Harrison, supra, and need not be repeated here.

In the second paragraph of his complaint the appellant has fully and accurately stated his cause of action, and, before considering the errors of which he complains, it is proper, we think, that we should give the substance of such second paragraph. Appellant alleged in such second paragraph of complaint that on the twenty-fifth day of August, 1884, he recovered a judgment in the Marion circuit court, of this state, against the defendants, Alfred and John C. S. Harrison, for $9,929.02, and costs taxed at $and thereafter, on the same day, caused an execution to be issued on such judgment to the sheriff of Marion county, which execution was then in the hands of such sheriff, wholly unsatisfied; that at the time such judgment was so rendered and such execution issued, and theretofore, on July 18, 1884, such judgment defendants were the owners of a large amount of personal property, in excess of the amount exempt from execution, consisting of money, office and bank furniture, fire and burglar proof safes, farming utensils and machinery, hay and other agricultural products, bills, notes, accounts, and other choses in action and credits, and other personal property, the character of which was unknown to appellant, and also of a number of lots and parcels of real estate, particularly described, in Marion county, Indiana; that the defendants, Alfred and John C. S. Harrison, on and before the eighteenth day of July, 1884, were partners in the banking business, under the firm name of A. & J. C. S. Harrison, and in that character had contracted and owed the debt to the appellant for which such judgment was recovered, and were the owners of all the property, real and personal, therein before described, the same being partnership assets, except the parcel of real estate, No. 24, the individual property of defendant Alfred Harrison, and except also parcels numbered 25 and 26, which were the individual property of defendant John C. S. Harrison. Appellant further alleged that on the eighteenth day of July, 1884, defendants, Alfred and John C. S. Harrison, suspended payment in their said banking business, and became and were insolvent as such partners and as individuals; and, being so insolvent, but there being no controversy as between themselves, they agreed between themselves to place all their partnership assets and property, and all their individual property and assets, subject to execution, in the hands of a receiver to be appointed by one of the judges of the superior court of Marion county, wherein they both resided, to be administered by such superior court by and through such receiver, and distributed to their creditors under the orders of such court, and thereby to prevent any of their creditors from taking any of such property on execution for the satisfaction of their debts; and to that end they further agreed that a proceeding, in the form of an ordinary civil action, should be forthwith commenced in such superior court, to which Alfred Harrison should be made an ostensible plaintiff, and John C. S. Harrison an ostensible de

fendant, and which proceeding, while adversary in form, should in fact be of a friendly and agreed character, and should be prosecuted without any opposition thereto being made by the ostensible defendant, John C. S. Harrison, but, on the contrary, with his active assistance; so that, without any delay, the appointment of a receiver should be procured, in whose hands all the property, partnership and individual, of Alfred and John C. S. Harrison should be placed, and thereby their creditors prevented from taking the same in execution for the satisfaction of their debts. And appellant averred that, in execution of such agreement, defendant John C. S. Harrison personally employed attorneys to commence such proceeding in the name of Alfred Harrison as plaintiff, and against himself as defendant, and such attorneys thereupon, under the instructions and directions of John C. S. Harrison, and in the absence of Alfred Harrison, prepared and filed in the office of the clerk of the Marion superior court, on the eighteenth day of July, 1884, a complaint against John C. S. Harrison, as defendant, in the name of Alfred Harrison as plaintiff, in substance as follows:

"The plaintiff complains of the defendant, and says that plaintiff and defendant are partners doing business as bankers, at Indianapolis, Indiana, under the firm name of 'A. & J. C. S. Harrison,' and have been, as such partners, doing such business for twenty years last past; that a run' has been going on, by their depositors, against their said bank, for several days last past, whereby their cash resources have been so much reduced that they are unable longer to continue said banking business, and said firm is therefore insolvent; that in order to prevent a multiplicity of suits, and thereby cause great expense in litigation, and in order to save said estate for their creditors, it is important that a receiver be now appointed for said firm to take possession and control of the assets of such firm, and administer the same under the order of the court; that a dissolution of such partnership be had, and an accounting between the partners. Wherefore," etc.

This complaint was signed by the attorneys of the plaintiff therein; and such attorneys, appellant alleged, at the same time and by the procurement of John C. S. Harrison, in further execution of the agreement between him and Alfred Harrison, prepared the answer to such complaint of John C. S. Harrison, signed by him in person, wherein he, "the defendant in this cause, admits the allegations of the complaint herein to be true;" that such answer was filed by John C. S. Harrison in the clerk's office of such superior court, at the time the complaint of Alfred Harrison was filed as aforesaid, and when such complaint and answer were so filed, and at all times thereafter until the first Monday of September, 1884, the superior court of Marion county was in vacation; that no summons or other process or publication was ever issued or made on such complaint of Alfred Harrison, or served on John C. S. Harrison, nor did he ever indorse on any summons or other process an acknowledgment of service in such pretended action; that immediately upon such complaint and answer being so filed, on the eighteenth day of July, 1884, they were, in further execution of such agreement, presented by the attorneys by whom they had been prepared, and by John C. S. Harrison in person, (Alfred Harrison not being personally present, nor represented otherwise than as he was represented by the attorneys who prepared such complaint and answer by the procurement of John