prove his guilt beyond reasonable doubt. Still less is it to be inferred that because the jury were told that if the direct evidence could be explained upon any other theory than that of perjury, it should be so explained that they were not also made fully to understand that if the witnesses for the commonwealth failed to command their confidence, or were, in their opinion, guilty of perjury, that the defendant was entitled to an acquittal. Exceptions overruled. NOTE. INTOXICATING LIQUORS-ILLEGAL SALES-PRINCIPAL'S LIABILITY FOR SALES BY AGENT. On an indictment for selling liquor to a minor, evidence of previous general instructions by defendant to his servants not to furnish fiquors to minors is immaterial, where it is admitted or conclusively appears that the particular sale charged was made with his knowledge and approval. State v. Mueller, (Minn.) 38 N. W. Rep. 691. Where it positively appears that defendant must have known of the sale by his servant, an instruction that he was liable whether he knew of it or not, is harmless, if error at all. People v. Riley, (Mich.) 38 N. W. Rep. 922. But it is held in People v. Parks, 13 N. W. Rep. 618, that under the Michigan statute of 1881, a liquor dealer cannot be held criminally responsible for the illegal sale of liquor by his clerk, without his knowledge. But he is so responsible where the sale is made with his knowledge and consent. State v. Skinner, (Kan.) 8 Pac. Rep. 420. And it was held in West Virginia, in the case of State v. Denoon, 5 S. E. Rep. 315, that a druggist is liable for an illegal sale of liquors by his clerk, though such sale is made without his knowledge, and contrary to his instructions. The same doctrine is upheld under the Mississippi statute. Teasdale v. State, 3 South. Rep. 245. The proprietor of a saloon is responsible for the act of his barkeeper in unlawfully keeping open such saloon on Sunday. He must, at his peril, see that it is kept closed. People v. Blake, (Mich.) 18 N. W. Rep. 360; People v. Roby, Id. 365. (122 Ill. 1) SPIES et al. v. PEOPLE. For majority opinion, see 12 N. E. Rep. 865. MULKEY, J., (concurring.) Not intending to file a separate opinion, as I should have done had health permitted, I desire to avail myself of this occasion to say from the bench that while I concur in the conclusion reached, and also in the general view presented in the opinion filed, I do not wish to be understood as holding that the record is free from error, for I do not think it is. I am nevertheless of opinion that none of the errors complained of are of so serious a character as to require a reversal of the judgment. In view of the number of defendants on trial, the great length of time it was in progress, the vast amount of testimony offered and passed upon by the court, and the almost numberless rulings the court was required to make, the wonder with me is that the errors were not more numerous and more serious than they are. In short, after having carefully examined the record, and given all the questions arising upon it my very best thought, with an earnest and conscientious desire to faithfully discharge my whole duty, I am fully satisfied that the conclusion reached vindicates the law, does complete justice between the prisoners and the state, and that it is fully warranted by the law and the evidence. (Supreme Court of Indiana. September 18, 1888.) 1. APPEAL-REVIEW-OBJECTIONS TO PLEADINGS-OBJECTION NOT RAISED BELOW. Rev. St. Ind. 1881, § 343, provides that by failure to present objections to a complaint, by demurrer or answer, all objections will be deemed waived, except an objection to the jurisdiction and the objection that the complaint does not state facts sufficient to constitute a cause of action. Held, that an objection on the latter ground, raised for the first time by assignment of error in the appellate court, must challenge the complaint as a whole, and not a particular paragraph of it; and such objection will fall if the complaint contains a single good paragraph. 2. SAME-RECORD-FINDINGS NOT SIGNED BY Judge. Findings of fact and conclusions of law, copied into the transcript, and brought up on appeal, but not signed by the judge of the trial court, will not be regarded as a part of the record, unless brought into it by a bill of exceptions. Appeal from circuit court, Madison county; DAVID MORSE, Judge. ZOLLARS, J. Appellant has assigned as errors that the third paragraph of appellee's complaint does not state facts sufficient to constitute a cause of action, and that the court below erred in its conclusions of law upon the facts specially found. These assignments are met by counsel for appellee with the contention that error cannot be assigned in this court that a single paragraph of a complaint does not state facts sufficient to constitute a cause of action, and that, as the special finding of facts and conclusions of law copied into the transcript are not signed by the judge, and have not been brought into the record by a bill of exceptions, there is no question properly before this court for decision. This contention cannot be disregarded without violating the provisions of the Code, and the rules of practice long since settled by the decisions of this court. There was no demurrer to the third paragraph of the complaint filed below. Its sufficiency is brought in question for the first time by an assignment of error in this court. The Code provides that by a failure to present objections to a complaint by a demurrer or answer all objections thereto shall be deemed to have been waived, "except only the objection to the jurisdiction of the court over the subject of the action, and except the objection that the complaint does not state facts sufficient to constitute a cause of action." Rev. St. 1881, § 343. Such an objection to a complaint may be made by an assignment of error in this court, but, like a motion in arrest of judgment, it challenges the complaint as a whole, and will not be available if, in the complaint, there is one good paragraph. So the above section of the Code clearly provides, and so it has uniformly been interpreted. Kelsey v. Henry, 48 Ind. 37; McCallister v. Mount, 73 Ind. 559; Trammel v. Chipman, 74 Ind. 474; Railway Co. v. Peck, 99 Ind. 68; Express Co. v. Rawson, 106 Ind. 215, 6 N. E. Rep. 337 The clerk below has copied into the transcript what purports to be a special finding of facts, and the court's conclusions of law thereon. Neither the finding of facts nor the conclusions of law is signed by the judge; and hence, under a long line of decisions by this court, they are not, and could not, become a part of the record, unless brought into it by a bill of exceptions. There is no bill of exceptions. The finding of the court must therefore be regarded simply as a general finding in favor of appellee, and, as the evidence is not before us, we cannot determine whether the finding and judgment are or are not erroneous. Smith v Davidson, 45 Ind. 396; Shane v. Lowry, 48 Ind. 205; Smith v. Johnson, 69 Ind. 55; McClellan v. Bond. 92 Ind. 424; Conner v. Town of Marion, 112 Ind. 517, 14 N. E. Rep. 484. Judgment affirmed, with costs. (115 Ind. 423) GAYLORD et al. v. CITY OF LA FAYETTE et al. (Supreme Court of Indiana. September 18, 1888.) 1. TRUSTS-DECLARATION-EXECUTORY TRUST. Rev. St. Ind. 1881, § 2969, provides that no trust concerning lands, except such as may arise by implication of law, shall be created, unless in writing, signed by the party creating the same, or his attorney, etc. Held that, under this section, a letter from a father to his son, saying that he had purchased land, had caused the deed to be made to the son, and that he should soon ask him to convey it to the writer's grandchildren for their support, and requesting him to tell his wife how the matter stood, that she might know in the event of the son's death, creates an imperfect, executory trust for the ultimate benefit of the grandchildren, and, such trust being voluntary, the donor has the right to perfect and complete it by causing the later conveyances to be made. 2. MORTGAGE-FORECLOSURE-CONCLUSIVENESS OF DECREE. After the land had been deeded to the mother of the beneficiaries, with remainder over to them, and the mother and children had taken possession, and the latter had become of age, a mortgage on the land was executed by the mother and children to cover debts evidenced by the joint notes of the mother and children, and subsequently a decree of foreclosure of the mortgage was entered. Held, that the decree could not be avoided, as against the children, by proof that they had no knowledge of the trust at the time the mortgage was made, nor when the decree was taken; and that the mortgagee and his assignees, and the purchasers at the sale, had such knowledge at the time they acquired their rights. Appeal from circuit court, Tippecanoe county; JOHN M. LARVE, Judge. B. W. Langdon and Coffroth & Stuart, for appellants. Robert Jones, Chase & Chase, and W. C. L. Taylor, for appellees. MITCHELL, J. Thomas F. and Harry C. Gaylord commenced this action in the month of February, 1882, with the purpose of establishing their right and quieting their title in and to certain real estate in the city of La Fayette. The undisputed facts, so far as a decision of the merits of the controversy require them to be stated, are as follows: On the 9th day of April, 1859, Nathan B. Dodge, grandfather of the appellants, resided in the city of La Fayette, at which place he afterwards died, in May, 1866. He was twice married. His second wife, by whom he had one child, survived him. Of his first marriage there were four children, viz.: Joshua Cleves Dodge, who, at the date above mentioned, resided in the city of Boston; Mrs. Emeline F. Granger; Mrs. Martha A. Gaylord, a widow, and mother of the appellants; and Mrs. Mary J. Chadwick, with dependent children. The son and daughter first named were in affluent circumstances, while both the daughters last named were comparatively poor On the date above mentioned Nathan B. Dodge purchased two tracts of land, in the city of La Fayette, from Albert S. White, for $12,600, which amount he afterwards fully paid. One of the tracts, valued at $8,500, was conveyed by White, by the direction of Nathan B. Dodge, immediately to Joshua Cleves Dodge. On the same day the conveyance was made by White, Nathan B. Dodge wrote a letter to his son, Joshua Cleves, of which the following is a copy: "LA FAYETTE, INDIANA, April 9, 1859. CLEVES: I have this day purchased the A. S. White property. I pay $12,600 for it. I have 14 rods on Columbia street, and 12 rods on Missouri street, and 81 feet fronting on South street. I gave him the house that I live in at $3,200, a lot that I got in payment for my farm at $800, and $6,000 cash in hand; $1,000 on 1st of July next; $1,000 in six months; $600 one year from to-day. I have had a deed made out to you for the property where he lives; that is, the cottage and large house, 145 feet on Columbia street, and 12 rods on Missouri street. I shall build myself a house for my own residence on 81 feet and 12 rods back, on the east side of the lot, and a house for rent on South, 81 feet front. The property is now renting for $500 per year. The property that is deeded to you is worth about $8,500. That I shall want a deed from you in a few days to Mrs. Gaylord's children and Mrs. Chadwick's. I shall send on a deed for you to sign in a few days. The property is now in your name, and I wish you would tell your wife how it is situated now, that she would know all about it if you should be taken away; and if I should, I want that property that is deeded to you to be made over to the four children, the rents and profits to be paid them yearly for their support, and when they become 21 years of age, to have the property in fee-simple to dispose of as they please. * * * I think I have bought the White property very low. It cost him $16,000, and as property is all the time advancing it must bring that again; but I will not sell it, as it is a good location, and I will let the children have it. Will write you again in a few days. Yours truly. N. B. DODGE." So much of the reply to the above letter as is pertinent reads as follows: "BOSTON, April 18, 1859. FATHER: Yours of the 9th was duly received, and contents noted. I have told Fanny all about the arrangements you proposed making in case I should be taken away, and she would follow the injunctions of your letter to me in that event. * * Yours truly, J. C. DODGE." The title to the land referred to in the foregoing correspondence remained as above until the 16th day of November, 1860, when Joshua C. Dodge and wife, at the request of Nathan B., conveyed part of the tract embraced by the deed from White to Joshua C. to Nathan B. Dodge for life, remainder over to Martha A. Gaylord, during her life, with remainder over in fee to her two sons, Thomas F and Harry C. Gaylord. Later on a similar conveyance was made of the residue of the tract, the title to which remained in Joshua C., with like remainder over to Mrs. Chadwick and her children. Nathan B. Dodge took possession of the property immediately after the purchase from White, and continued to occupy it until his death, which, as has been seen, occurred in May, 1866, having meanwhile made lasting improvements on the Gaylord tract of the estimated value of $4,500, and on the Chadwick tract of the value of $6,000. Upon the death of the father, the daughters took possession under the deeds to them respectively. While so in possession of the parcel conveyed to them as above, Mrs. Gaylord and her two sons, both being at the time over 22 years of age, executed two separate mortgages, covering the Gaylord tract, to secure debts of $7,000 and $2,000, respectively, due to Stephen Jones. These debts, which were evidenced by the joint promissory notes of the mother and sons, were subsequently assigned to John S. Williams, who instituted a foreclosure suit in the superior court of Tippecanoe county in 1876, making Mrs. Gaylord and the appellants Thomas F. and Harry C. Gaylord parties thereto. On the 25th day of September, 1876, there was found to be due on the several mortgage debts the sum of $10,304, for which amount a personal judgment was rendered against the mortgagors; which judgment was followed by a decree of foreclosure, and an order directing the sale of the right, title, and interest of the mortgagors in and to the property conveyed. The property was sold in pursuance of the decree, John S. Williams becoming the purchaser. It is through this decree and sale that the city of La Fayette claims title to what may be called the "Gaylord Tract." The Chadwick tract is not directly involved in this litigation. Upon the facts thus summarized two questions of a controlling character are presented, upon the determination of which the judgment of the court below should either be affirmed or reversed: First. Was the deed from White to Joshua Cleves Dodge, and the correspondence between the latter and his father, effectual as the declaration of a perfectly created trust, so as to vest the beneficial interest in the land conveyed at once, and irrevocably, in the Gaylord and Chadwick children? Second. If a trust was thereby at once perfectly created and effectually declared, was the interest which the Gaylord children took in the land in controversy extinguished by the foreclosure proceedings to which they were made parties? The appellants seek to maintain the affirmation of the first and the negation of the last of the above propositions. Pertinent to the first point it may be said, if the transaction created a trust, since the subject-matter thereof was land, it was essential to its validity that it should have been created or declared in conformity with section 2969, Rev. St. 1881, which provides that "no trust concerning lands, except such as may arise by implication of law, shall be created, unless in writing, signed by the party creating the same, or by his attorney thereto, lawfully authorized in writing." While a literal interpretation of the above statute might seem to require that the deed or instrument in which the estate or property to be affected by the trust is granted or conveyed should also contain the declaration of the trusts upon which the property is to be held, it is nevertheless settled that the statute will be satisfied if the trust has been manifested, or can be proved by any writing under the hand of the party to be charged, or of the party who is by law enabled to declare the same, provided the fiduciary rela tion, together with the nature, terms, and conditions thereof, are set forth in the writing with sufficient certainty so as to enable a court to carry it into ex ecution in the manner intended by the donor or creator of the trust. 1 Perry, Trusts, 82, 83; 2 Pom. Eq. Jur. §§ 1006, 1007, and notes. There is hence no well-founded objection to the alleged trust in the present case growing out of the fact that it was manifested by the letters which appear in the record, instead of being declared in the deed from White to Joshua C. Dodge. Forster v. Hale, 3 Ves. 696; Brown v. Combs, 29 N J. Law, 39; Raybold v. Raybold, 20 Pa. St. 308; Kingsbury v. Burnside, 58 Ill. 329; Pinnock v. Clough, 16 Vt. 508; Steere v. Steere, 5 Johns. Ch. 1; Hollinshead v. Allen, 17 Pa. St. 275. The trust in the present case, if one was perfectly created, was intended as a provision for the grandchildren of the settlor, who were natural objects of his bounty. It was therefore upon such a good or meritorious consideration as to become irrevocable and enforceable in case it was created or declared in such a manner as to fall within the category of executed trusts. Waterman v. Mórgan, 114 Ind. 237, 16 N. E. Rep. 590, and cases cited. A voluntary trust, resting upon a meritorious consideration, once perfectly created, is irrevocable. Rycroft v Christy, 3 Beav. 238; Paterson v. Murphy, 11 Hare. 88; Souverbye v Arden, 1 Johns. Ch. 240; Hildreth v. Eliot, 8 Pick. 293. A trust may be said to be executed when it has been perfectly and explicitly declared in a writing, duly signed, in which the terms and conditions upon which the legal title to the trust-estate has been conveyed or is held, and the final intention of the creator of the trust in respect thereto appear with such certainty that nothing remains to be done except that the trustee, without any further act or appointment from the settlor, carry into effect the intention of the donor as declared. In such a case, even though there was no valuable consideration upon which the trust was originally declared, a court of chancery will enforce it in favor of one whose relation to the donor was such as to show a good or meritorious consideration. Crawford's Appeal, 61 Pa. St. 51, 52; Stone v. Hackett, 12 Gray, 227; Ellison v. Ellison, 6 Ves. 656; Kekewich v. Manning, 1 De Gex, M. & G. 175; 2 Pom. Eq. Jur. § 1001; 1 Perry, Trusts, § 98. Where, however, property has been conveyed upon a trust, the precise nature of which is is imperfectly declared, or where the donor reserves the right to define or appoint the trust-estate more particularly, although it may be apparent that the creator of the trust has, in a general way, manifested his purpose ultimately at a time and in a manner thereafter to be determined, either by himself or by the trustee, to bestow the property upon a person named, the trust is incomplete and executory, and not within the jurisdiction of a court of chancery; the rule being that courts of equity will not aid a volunteer to carry into effect an imperfect gift or an executory trust. Adamson v. Lamb, 3 Blackf. 446; Harmon v. James, 7 Ind. 263; Dillon v. Coppin, 4 Mylne & C. 647; Colyear v. Mulgrave, 2 Keen, 82, 97; Edwards v. Jones, 1 Mylne & C. 226; 2 Story, Eq. Jur. § 7936; 2 Pom. Eq. Jur. § 1001. Whether the trust is perfectly executed or not is a question of fact, in each case to be determined by the purposes and objects which the settlor had in view, as manifested in the writing and from the situation and relation of the parties, and of the property which is the subject of the supposed trust. In cases where the writing is indefinite, or the language ambiguous and of doubtful construction, the practical interpretation given it by the parties themselves in carrying out their purpose is entitled to great, if not controlling, weight and influence. Reissner v. Oxley, 80 Ind. 580; Chicago v. Sheldon, 9 Wall. 54. In the present case the land in controversy was conveyed by White to Joshua Cleves Dodge, upon a valuable consideration, fully paid by Nathan B. Dodge, the conveyance being so made by the direction and with the consent of the purchaser. Under the provisions of the statute no use or trust in the land resulted in favor of Nathan B. Dodge, or any other persons, except to the ex |