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Thompson v. Lowe.

the note given by himself, that not being a debt due the partnership on which an action would lie, but, in effect, a mere certificate that the maker owed the firm so much money. The application of the principle which ruled in the case cited to the facts before us, leads to the conclusion that the agreement of Lowe to pay the partnership debts, did not include the note given by the firm to one of the partners, unless that note was then held by one in favor of whom it was enforceable against the firm.

As between the partners, the note was in effect nothing more than an acknowledgment that the partner named therein had paid into the firm, either in property or money, the amount specified in the note. The giving of the note in the name of the firm, did not isolate the transaction to which it related so as to take it out of the dealings or accounts of the firm. The transaction pertained to the partnership account, to be adjusted with other matters relating to the firm business in all respects as if no note had been given. The payee could have maintained no suit at law upon the note. Davis v. Merrill, 51 Mich. 480; Tipton v. Nance, 4 Ala. 194; Couilliard v. Eaton, 139 Mass. 105; Decreet v. Burt, 7 Cush. 551; Houston v. Brown, 23 Ark. 333.

Since the payee could not have maintained a suit at law upon the note, neither can his assignee who stands on no better ground. Section 5503, R. S. 1881; Green v. Louthain, 49 Ind. 139; Learned v. Ayres, 41 Mich. 677; Hill v. McPherson, 15 Mo. 204.

The controversy seems to involve but a single question, and that is, whether or not the note was assigned before maturity to an innocent holder for value. If it was so endorsed, the matters pleaded as a set-off are not available. If it was not, no action at law can be maintained upon the note.

The answer under consideration proceeds upon the theory that the note was endorsed after maturity, and that hence certain matters of account apparently due from Thompson to the firm of Lowe & Thompson were available as a set-off. Thompson v. Lowe.

Upon the theory that the matters pleaded were a proper setoff, the answer is not well pleaded. If the note had been -of a character to be enforceable against the firm, and hence one of the liabilities included in the agreement of Lowe, the items of account of Thompson were not subject to be set off against it. If the note was not assigned until after it was dishonored, the facts showing how it was given having been stated in the complaint, it was only necessary to answer that it was so assigned in order to defeat the plaintiff's right to maintain the action.

The answer alleged that the note was not assigned until after maturity. If it had been pleaded upon the theory of making that defence, it would have been a sufficient answer. The judgment must, however, be reversed.

There were other answers to which demurrers were overruled, which proceeded upon the theory that certain other items of account due from Thompson to the firm of Lowe & Thompson were proper matters of set-off. These answers did not allege that the note in suit was transferred after maturity. They were, therefore, clearly insufficient upon any theory. The overruling of a demurrer to a bad answer is reversible error, even though there be other good answers under which the same evidence is admissible. Epperson v. Hostetter, 95 Ind. 583, 587; Over v. Shannon, 75 Ind. 352; Sims v. City ■of Frankfort, 79 Ind. 446; Abdil v. Abdil, 33 Ind. 460.

As has already been seen, when Lowe purchased the interest of Thompson in the firm of Lowe & Thompson, and agreed to pay the firm debts, and transferred to Thompson certain property in lieu of his interest in the firm, it must be presumed, until the contrary appears, that all matters relating to the state of the latter's partnership account, both in respect to any indebtedness of his to the firm and to any liability of the firm to him, were adjusted in fixing the value of his interest. The note in Thompson's hands, or in the hands of any one who took it after maturity, constituted nothing more than a matter pertaining to the Taylor t. The State.

partnership account. The account, including the note, must be deemed to have been so far adjusted as that, except in some equitable proceeding looking to a readjustment of the whole partnership account upon some sufficient ground, the note can not now form the basis of an action at law, unless it be in the hands of an innocent holder. If it is so held, the state of the partnership account can not be made a matter of defence.

What has preceded renders it unnecessary that we should consider other questions discussed.

The judgment is reversed, with costs, with directions to the court below to sustain the demurrers to the amended sixth, and to the seventh, eighth and ninth paragraphs of answer and to give leave to the parties to reform the issues, and for further proceedings not inconsistent with this opinion.

Filed June 16, 1887.

No. 13,827.

Taylor V. The State.

Criminal Law.Rape.Penetration.—Under the statute, section 1806, R.

S. 1881, the slightest penetration, the other elements of the crime being

present, is sufficient to constitute rape. Sake.—Circumstantial Evidence.—Penetration, like any other element of

crime, may be established by circumstantial evidence.

From the Knox Circuit Court. W. A. Oullop and G. W. Shaw, for appellant. L. T. Michener, Attorney General, J. C. Adams, Prosecuting Attorney, and /. H. Gillett, for the State.

Elliott, J.—The appellant was convicted of the crime of rape upon the person of Jane Taylor, a child nine years of age. It is contended by his counsel that the verdict is not supported because there is no evidence of penetration.

Taylor v. The State.

Our statute provides that " In prosecutions for the offence of rape, proof of penetration shall be sufficient evidence of the commission of the offence." R. S. 1881, section 1806. Under this statute, however it may have been at common law, the slightest penetration of the genital organ of the male into that of the female is sufficient, the other elements of the crime being present, to establish guilt. Brauer v. State, 25 Wis. 413; State v. Tarr, 28 Iowa, 397; Bishop Statutory Crimes, section 488.

The rule prescribed by our statute is a sound one, and its efficiency should not be impaired by limiting its scope and effect. There was much reason for the censure so often passed upon the rule declared by some of the common law judges. In commenting upon some of the later cases the authors of a recent work on medical jurisprudence justly say: "In our opinion this is not only good law, but common sense. That a scoundrel who attempts the chastity of a child or a young girl should escape punishment merely because her youth, or the imperfect development or narrowness of the parts prevent his fully consummating the crime, appears to us as undesirable as it would be unjust." Woodman &Tidy Forensic Medicine and Toxicology, 640.

"The jury," says Mr. Bishop, " may infer the penetration from circumstances, without direct proof." Bishop Statutory Crimes, section 488. Discussing the same question, the Supreme Court of Iowa said: "Nor is the prosecution bound to show the fact of actual penetration by the prosecutrix herself." State v. Tarr, supra.

But it is unnecessary to multiply authorities, for it is clear, upon principle, that penetration, like any other element of crime, may be established by circumstantial evidence. In this case the circumstances prove the fact beyond doubt. The intent of the accused is fully proved, and his acts show that he did all in his power to accomplish his wicked design. That the act was not fully consummated was, it is clearly inferable, owing to the tender age of the victim of his lust. The Insurance Company of North America v. Brim.

She was in his power, he was in a situation to do all that the structure of the organs of the child would permit him to do, and he did injure her genital organs. There is no reason to doubt that this injury was done by his attempt to force his virile member into her person, and if it penetrated to the slightest depth he is guilty, and was justly condemned. Reg. v. Hughes, 9 Carr. & P. 752.

We do not deem it either necessary or proper to rehearse the evidence, for it is of a character not to be repeated except upon the demand of an imperious necessity, and no such necessity exists in this instance.

Judgment affirmed.

Filed June 17, 1887.

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184 491

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No. 12,729.

'1st 281

The Insurance Company Of Nokth America V. Brim. 323

111 281 171 412

Insurance.Policy.Alteration.Burden of Proof.— In an action on a 171 413 policy of insurance on the face of which no alteration is apparent, the burden is upon the insurer, if an alteration after delivery is claimed, to establish the fact of such change.

Sams.Premium.Rate.Evidence.—Where the premium paid by the ass a red upon a policy purporting to be for five years, is more than the minimum rate for three years as established by the insurance companies doing business in the locality where the risk is taken, and less than such rate for five years, the exclusion of evidence showing the minimum rate so established, as bearing upon the question of an alteration in the policy of from three years to five years, is at most a harmless ruling.

Same.Contract.Deceased Parly to.When Agent not Competent Witness.— In an action upon a policy of insurance by one who succeeded to the property therein described as heir and to the policy by assignment, testimony of an agent of the insurance company, who is called as a witness for the latter concerning matters occurring in the lifetime of the assured, is not competent under section 500, R. S. 1881.

Same.Notice of Loss.Reasonable Diligence.Invalid Condition.—A condi

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