Morrison, Plummer & Company v. Schlesinger et al. clusion of fraud follows irresistibly and inevitably from the facts charged. Counsel further say that the pleading is not sufficient to answer the whole complaint, because "the second paragraph of the complaint is for goods sold Becker in August, being over three months after all the facts referred to in this answer took place." This is the only argument and all the argument advanced to support this proposition. The conclusion drawn by no means follows from the premise. This position of appellant is discussed more fully by its counsel in presenting the exceptions to the conclusions of law, and will be further considered by us when we reach that branch of the case. It is sufficient to say that the counsel have not, in our judgment, advanced any argument which will overthrow the answer. We are unable to discover any material difference between the sixth paragraph of answer to complaint number two, and the ninth paragraph upon which we have just passed. We now come to the questions presented by the exceptions to the conclusions of law. All the facts necessary to make a prima facie case for appellant are properly found. Unless the finding contains, in addition thereto, such facts as overthrow this prima facie case, and establish the ninth paragraph of answer, the appellee must fail. It is unquestionably the law that where a debtor enters into a composition with his creditors, any secret agreement whereby one of the creditors secures to himself some advantage over the other creditors, is a fraud upon them, and invalid. This is true, although the effect of it is not to give the one creditor more money than the others, but simply further security. The law holds the debtor to the strictest good faith. Morrison, Plummer & Company . Schlesinger et al. with his creditors in making a composition. It also requires from the creditors the utmost good faith and fairness toward each other. It is also the law that the debtor himself may set up the fraud in defense of an action on the secret agreement. Shinkle v. Shearman, 7 Ind. App. 399; Kahn v. Gumberts, 9 Ind. 430; McFarland v. Garber, 10 Ind. 151; Leicester v. Rose, 4 East. 372; Stuart v. Blum, 28 Pa. St. 225; Frieberg v. Treitschke, 55 N. W. Rep. (Neb.) 273; Hanover Nat'l Bank, etc., v. Blake, 20 N. Y. Supp. 780; 3 Am. and Eng. Encyc. of Law, 396; Greenhood on Pub. Pol., Rule 154, p. 141. This proposition does not seem to be seriously controverted by appellant's counsel, but they very earnestly insist that since the guaranty covers both present and future liabilities, it is separable, and that although the agreement may be void, so far as it relates to the existing indebtedness, which was included in the composition, still it may be valid and binding so far as it purports to protect appellees in their future sales. From the special finding, it appears that Becker was indebted to appellant and others, made an assignment and then agreed upon a composition with his creditors, including appellant, by the terms of which he was to pay 33% cents on the dollar, cash, giving his individual notes for the residue; that this composition was carried out by the parties, the assignment proceedings dismissed and his property returned to him; that the notes sued on were executed in fulfillment of this composition on May 26, 1891; that the other creditors received no security. on their notes, and had no knowledge of appellant's receiving said guaranty. It is further found: "12. That the plaintiff would not execute said composition agreement set out in No. Morrison, Plummer & Company v. Schlesinger et al. 10, until the defendant Nanette Schlesinger would and did sign the guaranty mentioned in the complaint." "23. That there was no other or different consideration for the notes and guaranty mentioned in the complaint than the composition agreement set out in finding No. 10." "262. That said guaranty secured a further credit for said Becker with plaintiff, and that in consideration thereof plaintiff, in August, 1891, sold and delivered to him the goods mentioned in the second paragraph of complaint." It is urged by counsel that because the guaranty is, as to future sales, a continuing one, and the future sale is wholly separable from the past indebtedness, and was made in consideration of the guaranty, therefore it is valid as to such sales. It has been adjudicated in our State that where the consideration is in part valid and in part invalid, and it is practicable to separate the valid from that which is vicious, the law will support so much of the contract as clearly appears to rest upon the valid consideration only. Hynds v. Hays, 25 Ind. 31; Doan v. Dow, supra. The vice existing in appellant's argument, however, is that here the valid is not separable from the invalid. The guaranty was not, even as to future sales, made merely because the guarantor desired to give Becker a credit with appellant. On the contrary, the prime moving cause, operating upon her mind to procure the execution of the guaranty, was the appellant's agreement to sign the composition, which was, under the circumstances, a fraud and wrong, and can not be permitted to be the basis upon which shall rest, to any degree, the promise of appellee. Appellant's fraudulent act was a constituent element Morrison, Plummer & Company v. Schlesinger et al. of the consideration which induced the execution of the guaranty. The fact that appellant's acceptance of the guaranty and its sales under it might ordinarily furnish an adequate and sufficient consideration for it, does not. gainsay nor overthrow the fact that the fraudulent conduct of appellant was also a potent factor in procuring it. As well might it be contended that if the guaranty was executed under duress, yet if the goods were afterward sold in reliance upon it, recovery could be had. Knowing the infirmity in it, appellant could not rightfully rely upon it. It being impossible for us to say that any part of the contract of appellee rested wholly upon the valid and legal consideration, no part of it is enforceable. Saxon v. Wood, 4 Ind. App. 242; James v. Jellison, 94 Ind. 292; Everhart v. Puckett, 73 Ind.409; Hynds v. Hays, supra. As we view them there is no conflict nor want of harmony in the special findings, and the evidence was sufficient to justify them. Neither has appellant shown that there was any error in admitting evidence. We have examined and considered all the questions presented by counsel, and find no cause for reversal. Judgment affirmed. Newton, Administrator, v. Pence. No. 1,224. NEWTON, ADMINISTRATOR, v. PENCE. PRINCIPAL AND SURETY.-Question of Suretyship.-How Tried.—Pleading.-In an action upon a promissory note, a question of suretyship can be tried only by the filing of a cross-complaint and the formation of issues thereon. If a pleading amounting to a cross-complaint is filed, it is sufficient, although denominated an answer. SAME.-Appearance.-Process.-Void Judgment.-Where, in an action against several persons upon a promissory note, one of the defendants files a pleading alleging that he is surety, and that all the other defendants are principals, a judgment to such effect is void as to a defendant who is a co-surety, if the latter neither appeared to nor was served with process under such pleading. SAME.-What is Not an Appearance.-Default.-Where the record shows no official act in behalf of a defendant, such as the making or arguing of a motion or the filing of a paper, but does show that the defendant was defaulted by the plaintiff, it will be taken as conclusive that there was no appearance by such defendant, either to the complaint or to the cross-complaint of another defendant alleging suretyship. SAME. Contribution.-Insolvent Surety.-Where one of several sureties has paid the whole debt, he may, in a suit for contribution against another solvent surety, recover one-half the amount paid upon a showing that the other sureties are insolvent. JUDGMENT.—Agreement as to.-Finding.—A party before the court may bindingly agree to the form of a judgment, but a mere finding of evidentiary facts bearing upon the question of such an agreement is not, in the absence of a finding of the ultimate fact that there was such an agreement, sufficient to show that the party is concluded. From the Grant Circuit Court. G. W. Harvey and A. De Wolf, for appellant. REINHARD, J.-Pence sued Newton and recovered judgment for contribution. In his complaint he alleged that one William H. Irvine recovered a judgment against him, Pence, and also against Jacob C. Grindle and the appellant, and another judgment against the same par |