sustaining it to an insufficient answer would be a harmless ruling, and could not result in the reversal of the judgment. Hildebrand v. McCrum, 101 Ind. 61. The judgment is affirmed, with costs.

(3 Ind. A. 518)

WATSON V. CONWELL.

(Appellate Court of Indiana. Feb. 3, 1892.) ACTION BY ASSIGNEE-PLEADING-PARTIES.

A complaint in an action by the assignee of an account, which neither makes the assignor a party defendant, nor avers an "indorsement in writing," is demurrable for defect of parties defendant under Rev. St. 1881, § 276, providing that "when an action is brought by the assignee of a claim arising out of contract, and not assigned by indorsement in writing, the assignor shall be made a defendant, to answer to the assignment of his interest in the subject of the action. "

Appeal from circuit court, Howard county; L. J. KIRKPATRICK, Judge.

the assignor, should have been made a party defendant, and that the failure to do so was a sufficient ground for sustaining the demurrer on account of a defect of parties defendant. We are of opinion that the appellant must prevail in this contention It is provided by statute that "when an action is brought by the assignee of a claim arising out of contract, and not assigned by indorsement in writing, the assignor shall be made a defendant, to answer as to the assignment of his interest in the subject of the action." Rev. St. 1881, § 276. There is no averment as to any "indorsement in writing" hav. ing been made, and no reason is stated why the assignor is not joined as a defendant, An objection of this character is properly taken by demurrer for a defect of parties defendant. Gordon v. Carter, 79 Ind. 386; Kennedy v. Anderson, 98 Ind. 151; Thorn. & B. Code, § 276, and notes. The requirement of the statute seems to be imperative, and it was error to overrule the demurrer. Upon the other ground of demurrer we think this paragraph is sufficient. As the cause originated before a justice of the peace, we must hold the

lant.

REINHARD, J. Action by the appellee against the appellant before a justice of the peace. The complaint was in two paragraphs. In the circuit court, to which the cause was appealed, there was a demurrer to each paragraph of the complaint, which was overruled. This ruling is one of the errors relied upon by the appellant for the reversal of the judgnent. As to the second paragraph there were two causes of demurrer assigned: (1) Want of sufficient facts; (2) a defect of parties defendant. It was averred in the second paragraph that the defendant is indebted to the plaintiff in the sum of $95.07; "that in the month of June, 1887, said defendant and oue James Rayl were partners in the construction of a certain drain in the city of Kokomo, Indiana; that at said date said Rayl was indebted to plaintiff for house-rent in about the sum of $95, and, being unable to pay the same, and there being due and owing said Watson and Rayl about $500 for work done by them as partners, of which said Ray was justly entitled to the sum of $95.07, which he assigned to plaintiff herein; and it was agreed by the plaintiff and defendant herein and said Rayl that said defendant, Watson, should collect the money then due said Watson and Rayl; and, as soon as sufficient money was collected to pay off said amount of $95.07, that defendant should pay the same to plaintiff. The plaintiff says that said sum has long since been paid to said Watson, but he has failed and refused to pay said sum to plaintiff, or any part thereof, and still fails and refuses to pay the same; and plaintiff says that said sum is due, with interest thereon to the amount of $20. Wherefore," etc. It will be noticed that the account sued upon, or the interest therein claimed by the appellee, is alleged to have been assigned to the said appellee by Rayl. The appellant insists that Rayl,

stance to bar another action for the same demand. Milhollin v. Fuller, 1 Ind. App. 58, 27 N. E. Rep. 111. With regard to the first paragraph we have some doubt as to its sufficiency, but, as it may be amended on another trial, we need not express any opinion. Other points are presented, but, as they may not arise again, we need not consider them. Judgment reversed, with directions to the court below to sustain the demurrer to the second paragraph of the complaint and for further proceedings. It appearing that since the submission of this cause the appellee has died, it is ordered that the judgment of reversal be entered as of the date of submission of the cause, viz., April 30, 1891.

(3 Ind. A. 532) HELMAN et al. v. WITHERS. (Appellate Court of Indiana. Feb. 4, 1892.) REPLEVIN WHEN LIES-TRANSFER OF PROPERTY.

A person in possession of goods without right cannot avoid an action of replevin by transferring the possession to another, even though the transfer be made before the commencement of the suit.

Appeal from circuit court, Elkhart county; J. M. VANFLEET, Judge.

Replevin by Harvey Withers against Tobias K. Helman and another. Judgment for plaintiff. Defendants appeal.

firmed.

Af

Chamberlain & Turner, for appellants. Dodge & Dodge, for appellee.

NEW, J. This was an action in replevin instituted and tried in a justice's court, and from there appealed to and tried in the circuit court. The appellee, in his complaint, avers that he is the owner and en. titled to the possession of one bald-face mare, of the value of $65; that the appellants, Tobias K. Helman and Samuel R. Helman, the defendants below, have the possession without right, and unlawfully detain the same from the appellee, and

that the said property has not been taken by virtue of any execution, tax assessment, attachment, or other writ of any kind against the appellee. Wherefore judgment is asked for the recovery of said horse, and $25 damages for the detention thereof. In the circuit court, upon the issues joined, there was a trial by jury, and special verdict returned as follows: "We find that on and prior to the 29th day of July, 1889, the plaintiff was the owner and in the possession of the mare described in the complaint; that on said day one Arthur Withers took said mare, and traded and delivered her to the defendants, Tobias K. Helman and Samuel R. Helman; that said Arthur Withers, in making said trade, was not the lawful agent of the plaintiff; that said trade was not made with the knowledge or consent of the plaintiff; that, when the plaintiff was informed of said trade, he did not ratify the same; that on the 2d day of August, 1889, and before this action was brought, plaintiff caused a demand for the return to him of said mare to be made on the defendant Tobias R. Helman, which was refused; that before this action was brought the said defendants had sold and delivered said mare to one David Wise; that said sale was made before said demand was made; that said delivery to Wise was made for the purpose of evading the writ of replevin in this cause, and said delivery was inade about one-fourth hour before this action was commenced; that the officer to whom the writ was issued did not succeed in finding said mare; and that the value of said mare is fifty dollars. If, upon the foregoing facts, the law be with the plaintiff, as against either or both defendants, then we find for the plaintiff, and assess his damages at fifty dollars. If the law be with either or both defendants, then we find for him or them." A motion

by the appellants for judgment in their favor upon the facts found by the special verdict was overruled. Judgment was then rendered in favor of the appellee, upon his motion, for the value of the mare as found by the jury, and for costs.

The appellants have assigned as error the overruling of their motion for judgment upon the special verdict, and the sustaining of the appellee's motion for judgment. The question presented for our decision is, can the judgment of the circuit court be sustained upon the facts found by the jury?

It is made to appear by the facts found that on and prior to the 29th of July, 1889, the appellee was the owner and in possession of the mare in dispute, and that on that day Arthur Withers, without right, traded and delivered her to the appellants, who, upon the 2d day of August, 1889, before this suit was commenced, refused, upon the demand of the appellee, to return to him said mare; that before the commencement of this suit, and before the making of said demand, the appellants sold and delivered said mare to one David Wise, for the purpose of evading the writ of replevin issued in this cause; that the value of the mare is $50. Counsel for the appellants contend that, inasmuch as the appellants were not in the possession of

Re

the mare at the time the action was commenced, the judgment of the court below was erroneous. The two actions, detinue and replevin, were formerly in use in this state. These two actions-detinue, for an unlawful detention, and replevin, for an unlawful taking and detention-covered the whole ground of deprivation of personal property, so far as the recovery of the specific articles was concerned; and we think an examination of the earlier statutes, and the definition of “detinue" and "replevin" as given at common law, will clearly show that the statutes now in force for the recovery of personal property cover the entire ground of both of those sections. St. 1824, p. 337; Rev. St. 1831, pp. 305-424; Rev. St. 1838, pp. 372-475-477; Rev. St. 1843, pp. 697, 732, 896; 1 Chit, Pl. 120-162. In the case at bar it is an unlawful detention that is complained of. In detinue the gist of the action was the unlawful detainer, and therefore it was that the action would lie against a person having the wrongful possession of the chattel, although he may have acquired the possession in the first instance lawfully. plevin was originally the remedy when goods were unjustly taken and detained. Now, under the Code and in the justice's act replevin embraces both a wrongful taking and an unlawful detention. Detinue, at common law, would lie against him who once had, but afterwards improperly parted with, the possession of a chattel. 1 Chit. Pl. p. 123; Jones v. Dowle, 9 Mees. & W. 19; Ellis v. Lersner, 48 Barb. 539; Nichols v. Michael, 23 N. Y. 264-268; Dunham v. Railroad Co., 42* N. Y. 543; Harris v. Hillman, 26 Ala. 380; Lightfoot v. Jordan, 63 Ala. 224; Harkey v. Tillman, 40 Ark. 551-555. It is our opinion, also, now that replevin, under our statutes, embraces detinue, as it was at common law, that a party in the possession of goods without right cannot avoid the action of replevin by wrongfully transferring the possession to another, even though the transfer be made before the commencement of the suit. He cannot protect himself by showing that he has wrongfully transferred the property to another. In this view we are well supported by authority. Nichols v. Michael, supra; Latimer v. Wheeler, 3 Abb. Dec. 35; Bullis v. Montgomery, 50 N. Y. 352; Manning v. Keenan, 73 N. Y. 45; Drake v. Wakefield 11 How. Pr. 106; Ross v. Cassidy, 27 How. Pr. 416; Brockway v. Burnap, 16 Barb. 309; Ward v. Woodburn, 27 Barb. 346; Ellis v. Lersner, supra; Barnett v. Selling, 9 Hun, 236; Sayward v. Warren, 27 Me. 453-457; Freeman v. Scurlock, 27 Ala. 407; Washington v. Love, 34 Ark. 93; Harkey v. Tillman, supra; Lightfoot V. Jordan, supra; Schmidt v. Bender, 39 Kan. 437, 18 Pac. Rep. 491; Gildas v. Crosby, 61 Mich. 413, 28 N. W. Rep. 153; Briggs v. McEwen, 77 Iowa, 303, 42 N. W. Rep. 303; Gassner v. Marquardt, 76 Wis. 579, 45 N. W. Rep. 674; Wells, Rep. § 145; Cobbey, Rep. § 435. The case of Latimer v. Wheeler, supra, is quoted from with approval in Louthain v. Fitzer, 78 Ind. 449. See, also, Wilson v. Rybolt, 17 Ind. 391; Hoke v. Applegate, 92 Ind. 570. The delivery of the mare by the appellants to Wise must, from the facts

JAMES V. Gillen.

found, be regarded as wrongful to the ap pellee, a mere subterfuge to withhold the mare from the latter, and to escape liability. The appellants had no title to the property, and could not rightfully deliver it to any other than its owner. They were trying to place the dominion of prop. erty elsewhere than in the owner. If it be said that there was a detention of the property on the part of Wise, it must be said, also, that the appellants were contributors and participants in that detention. It has been decided that the selling of the property of another, without right, is, in effect, a detention of the property from the true owner. See Sayward v. Warren, supra, and Latimer v. Wheeler, supra. The judgment is affirmed, with costs.

(4 Ind. App. 237)

INDIANA LIVE-STOCK Ins. Co. v. BOGEMAN.1 (Appellate Court of Indiana. Feb. 4, 1892.) INSURANCE-ACTION ON POLICY-OWNERSHIP-DEMURRER.

1. In an action on a policy of insurance on a horse the complaint is insufficient where it fails to show that plaintiff owned or had an interest in the horse at the time of its death.

2. Where a complaint is insufficient it is error for the court to sustain a demurrer to the answer.

Appeal from circuit court, Shelby county; L. J. HACKNEY, Judge.

Action by John Bogeman against the Indiana Live-Stock Insurance Company on a policy of insurance. From a judgment sustaining plaintiff's demurrer to the second paragraph of the answer defendant appeals. Reversed.

Adams & Carter, for appellant. Hord & Adams, for appellee.

BLACK, J. The appellant, by its policy, engaged to insure the appellee against loss by death of his certain stallion, to a specified amount, for the period of one year from the 16th of April, 1890. The appellee's complaint upon this policy stated the death of the horse on the 15th of July, 1890. It showed that the appellee was the owner of the horse at the date of the contract of insurance, but it wholly failed to show that he owned it, or had any interest in it, at the time of its death. Therefore the complaint lacked a mate. rial and necessary averment. Insurance Co. v. Johnson, 46 Ind. 315; Insurance Co. v. Duke, 75 Ind. 535; Insurance Co. v. Black, 80 Ind. 513; Insurance Co. v. Kittles, 81 Ind. 96; Insurance Co. v. Benton, 87 Ind. 132; Insurance Co. v. Rowe, 117 Ind. 202, 20 N. E. Rep. 122; Insurance Co. v. Newman, 120 Ind. 554, 22 N. E. Rep. 428.

The action of the court in sustaining a demurrer to the second paragraph of answer is assigned as error. As the complaint was insufficient, we must sustain the appellant's contention that for this reason it was error to sustain the demurrer to the answer. Batty v. Fout, 54 Ind. 482; Corporation of Bluffton V. Mathews, 92 Ind. 213. The judgment is reversed, and the cause is remanded, with instructions to overrule the demurrer to the second paragraph of answer.

'Rehearing denied.

(8 Ind. App. 472)

(Appellate Court of Indiana. Feb. 8, 1893.) MEMBER OF FAMILY-COMPENSATION FOR Services. In an action against a decedent's estate for services rendered, it appeared that decedent and her brother had agreed to live as one family on decedent's farm, the brother to look after the farm, and supply the food and clothing, and decedent to do the household work; that plaintiff, their niece, at the request of her uncle, entered the family, and, decedent's health being poor, the household work was thereafter done by plaintiff and her sister; that her food and clothing were furnished by her uncle; that plaintiff was treated in all respects as a member of the family; and that there was no agreement as to compensation. Held, that the court, after charging that, where persons stood in such relation as plaintiff and decedent, and were members of a common family, there was no obligation to pay for services rendered on the one side or for maintenance on the other, without express promise to that effect, or under such circumstances as would imply a promise, erred in adding "that this rule does not apply to infants, for they cannot be bound by the implied contract growing out of

such relation."

Appeal from circuit court, Putnam county; S. M. MCGREGOR, Judge.

Action by Mary Gillen against John H. James, administrator. Judgment for plaintiff. Defendant appeals. Reversed. Ballard & Ballard, for appellant. S. A. Hays, for appellee.

a

CRUMPACKER, J. Mary Gillen filed claim against the estate of Sarah Dougherty, deceased, of which John H. James is administrator, for work and labor performed for said decedent from the 1st day of August, 1883, to the 30th day of August, 1887. The cause was tried by a jury, and a verdict returned in favor of the claimant, upon which judgment was rendered. The evidence showed that the decedent and her brother, Henry Dougherty, were both unmarried, and past the meridian of life, and they owned adjoining farms in Putnam county. There was a house upon the decedent's farm, and she and her said brother entered into an agreement whereby they were to live together in said house, and maintain a household; the brother agreeing to look after the farm, and furnish all of the provisions and clothing, and the decedent was to attend to the household affairs. This arrangement had continued for a number of years prior to the decedent's death, which occurred in the latter part of August, 1887. In 1881 or 1882, a sister of these parties died, leaving a family of four small children, the oldest being the appellee, who was then 12 or 13 years of age. Soon after the death of this sister, Henry Dougherty and the decedent took the three younger children into their family, and cared for them. Appellee lived with her father and another uncle until the 1st of August, 1883, when the decedent's health began to decline; and at the re quest of Henry Dougherty appellee also went to their home, and lived there with her uncle and aunt and brothers and sisters until the death of the aunt, as aforesaid. Appellee was 15 years of age at that time; and the decedent's health was very poor, so that she was unable to do

much, if any, of the household work, and the burden of it was thrown upon appellee and her sister, two years younger than she. They continued to live in this manner, Henry Dougherty furnishing the provisions and clothing for all of the family. The decedent was a paralytic, and continued to grow worse gradually until she became quite helpless, and required a great deal of care and attention, and services were required in caring for her which were very disagreeable. Henry Dougherty, appellee, her sister and brothers, all assisted in waiting upon the decedent | after she became helpless, and appellee and her sister undertook the burden of the household work, which they performed in a very satisfactory manner. There was evidence tending to show that they all lived as a common family, and that the appellee assisted in making clothes for and caring for her brothers; that she was nursed through a spell of sickness; that she went in society and to church, and was clothed and provided for as well as the average girl of her age and station in life in that vicinity, and that Henry Dougherty treated her with that kindness and consideration with which a parent would have treated a child. He was her guardian during the time she lived there. There was no contract or agreement whatever about compensation, or the terms upon which appellee was to live with her uncle and the decedent; and she kept no account of any kind, and never said anything about wages during the lifetime of the decedent. Upon the other hand, there was evidence tending to prove that appellee was compelled to perform work that was extraordinarily hard and distasteful, and which pertained to the station of a household servant or a nurse, rather than a child; that she was not sent to school, and was very poorly clothed. Also, on one occasion, Henry Dougherty, as her guardian, charged her with four dollars for medical treatment procured for her. The guardian, in explanation of this charge, said she visited at a neighbor's house, where the inmates were afflicted with measles, in disobedience of his instructions, and that he warned her in advance that if she became sick he would not pay the physician's bill; that she contracted the measles, and he charged her with the expense of the attending physician. The jury found that appellee's serv. ices were worth $500 more than the cost of her maintenance.

Among other instructions, the court gave the jury the following, which is very vigorously assailed by counsel for appellant: "It is a rule of law that when persons stand in the relation towards each other occupied by the plaintiff and the deceased, that of aunt and niece, living together as members of a common family,there is no obligation to pay for services rendered on the one hand, and for board, lodging, and clothing on the other, without there be an express promise to pay, or the circumstances be such as to raise an implied promise; but this rule does not apply to infants, for they cannot be bound by the implied contract growing out of such a relation." The objection urged

against this instruction is that, while it states the general doctrine respecting the family relation correctly, it erroneously declares that it does not apply to infants, where the relation is assumed. A minor is not bound by his express contract to perform services, and may at any time renounce it, and recover the value of the services performed, regardless of the contract. This proposition is so familiar and ́ well settled in this state that no citations are needed to support it. It is insisted in defense of the action of the court that, if a minor may disaffirm his express contract, he may, upon the same principle, disaffirm one arising by impiication of law, and that in the family relation created by the act of the parties there is an implied agreement that services upon the one hand shall compensate for maintenance upon the other, and vice versa. Before there can be a recovery for work and labor in any case, there must be established some kind of a contract, either express or implied. No one can be lawfully charged for services performed for him, except upon the theory of a promise to pay for such services. Where there is no express agreement, but the services are performed upon the one side and accepted on the other under such circumstances that reason and justice would dictate that they should be paid for, the law will imply a promise and permit its enforcement. Where the relation of the parties is such that compensation, according to human intercourse, is ordinarily given and received, the law will create a promise to pay. This is generally the case where there appears to be no other adequate motive than the expectation of reward to prompt the performance of the service. But where its performance may be accounted for upon grounds more probable than the hope of pecuniary reward, such as acts of kindness and affection between members of a common family, prompted by a sense of love and duty, no promise to pay will be implied. Thus it was said by the court in Davidson v. Gas-Light Co., 99 N. Y. 558, 2 N. E. Rep. 892: “A promise to pay for services is sometimes implied by law, but this is done only when the court can see that they were rendered under such circumstances as authorized the party performing to entertain a reasonable expectation of their payment by the party soliciting the performance. In the case of Woods v. Ayres, 39 Mich. 345, the court said: "Where there is a spontaneous service as an act of kindness and no request, or where the circumstances account for the transaction on some ground more probable than that of a promise of recompense, no promise will be implied. The contract connection is not established." Upon this principle it is universally held, in all cases where the family relation exists, whether natural or assumed, in the absence of an express agreement or circumstances from which an agreement may be fairly inferred, that no promise will be created by implication of law to pay for services upon one hand, or for support upon the other. This rule of law has its foundation in the theory that the relation repels the legal inference of contract, rather than in an im