inventory was completed, and there is no other evidence that the note came into their possession, or that they knew of such a debt due the estate, they will not be charged for failure to collect the alleged note. Myers v. Myers, (Mo.) 11 S. W. 617.

15. Where deceased and M., who were partners in trade, executed three notes at about the same time, one in the firm name, and the other two in their individual names, it will be presumed that the two last-mentioned notes were given for joint debts; and the administrators having paid them in full must show, on a settlement after M. became insolvent, either that they made all reasonable efforts to enforce contribution from M., or that there was no liability from M. to the estate.Myers v. Myers, (Mo.) 11 S. W. 617.

16. Expenses incurred by an administrator in preserving the estate cannot be recovered on his decease, by his personal representative, from the estate, until the deceased administrator's accounts with the estate have been finally settled and audited by the probate court.-Smith v. Davis, (Ark.) 11 S. W. 681.

17. The annual settlements made in the probate court are prima facie evidence in favor of the administrator.-Myers v. Myers, (Mo.) 11 S. W. 617. 18. The administrator, who was also a legatee, and another legatee, the mother and natural guardian of two infant legatees, for themselves and the infants, conveyed to a firm of attorneys one-half the assets of the estate, after the settlement of all claims against it, on condition of the professional services, etc., of said attorneys rendered in the settlement of the estate. Held that, under such a contract, defendant, the survivor of the firm, and assignee of his partner, was required, before he could retain any part of the estate that might come into his hands, to pay all claims against, and settle all conflicting titles to, the property of the estate.-McCampbell v. Durst, (Tex.) 11 S. W. 380. 19. A suit by the vendee of the administrator and the other legatees to set aside certain orders of the probate court, relating to the settlement of the estate, and to cancel conveyances by which defendant has acquired part of the lands, alleging that he has failed to pay the debts or otherwise to comply with the contract, and charging fraud in the procurement of the probate orders, is a direct, and not a collateral, attack on the probate proceedings, and can be maintained. McCampbell v. Durst, (Tex.) 11 S. W. 380.

20. Such a suit, brought eight years after the defendant received his deed from the purchaser of the land at a sale under a decree of the probate court, until which time defendant made no claim to the land, is not the assertion of a stale demand. -McCampbell v. Durst, (Tex.) 11 S. W. 380.

21. It being alleged, as part of the fraudulent transaction by which defendant acquired title to the land, that the purchaser at said sale paid no consideration therefor, and received none from de

fendant, the testimony of the purchaser, proving such allegations, is admissible, though it contradicts the recitals of the deeds.-McCampbell v. Durst, (Tex.) 11 S. W. 380.

22. Under the circumstances, though the court properly refused to charge that, if the contract mentioned was fraudulent, the jury should find against all the plaintiffs, two of them not being in fact parties thereto, the court's attention being called to the question, it should have charged that, if the administrator participated in the alleged fraud by willfully and falsely reporting the purchase money for the land to have been paid, and by making the conveyance to the purchaser, his vendee could not recover as against defendant, his co-worker in the fraud. - McCampbell v. Durst, (Tex.) 11 S. W. 380.

23. The fact that an administrator had reported the disposition made of a judgment in favor of the estate in his account, which was confirmed, would not bar the widow's claim to the judgment, as she is not affected by the accounting, when her claim for dower was not before the court for adjudication.-Crowley v. Mellon, (Ark.) 11 S. W.

876.

24. Under the Texas statute which positively forbids an administrator's taking property of the estate at its appraised value, where the administratrix files an exhibit containing an item for property converted to her own use, it is not proper to accept the report and charge her with its appraised value, but she should be required to show its application, and, if it has been misapplied, she should be removed and proceeded against on her bond for the value of the property and interest and profits.-Chefflet v. Willis, (Tex.) 11 S. W. 1105. Liabilities and misconduct.

25. A will gave to testator's son, one of three executors, the entire management of a business in which testator and the son were partners, until testator's youngest child should become 21 years of age, the profits to be applied by the son in a particular manner. The son was empowered to purchase an additional interest in the business, so as to make his interest one-half, which he did by crediting the estate with the amount he paid for such interest, which amount, the will provided, was to be divided as profits. The son's co-execuand no joint bond was executed by the executors. tors were given no supervision over the business, Held, that the son's co-executors were not liable to the beneficiaries under the will for the son's mismanagement of the business, whereby it became bankrupt, where they were guilty of no fraud, and had no reason to believe that the son was misappropriating the funds of the business.Walker v. Walker's Ex'rs, (Ky.) 11 S. W. 718.

26. The son is liable for the loss of the firm assets caused by his reckless indorsements of the commercial paper of others.-Walker v. Walker's Ex'rs, (Ky.) 11 S. W. 718.

collect notes due an estate by the administrator, 27. When an attorney had been employed to who at all times disputed the widow's right to dower therein, and had always treated the attor ney as his own, the administrator would be liable for the attorney's misconduct, when the notes were found to belong to the widow, though it was originally agreed that the widow should join in the employment of counsel to prosecute the suit for their joint benefit.-Crowley v. Mellon, (Ark.) 11 SW 876.

Sales under order of court.

28. Rev. St. Mo. § 170, provides that if on the settlement of the administrator's accounts it appear that the personal estate is not sufficient to pay debts the court may make such order as it thinks necessary for the sale of the real estate. Section 222 requires the administrator, at the first term of the probate court after the end of one year from the date of his letters, to exhibit his accounts for settlement, and to make a like exhibit every year thereafter. Held that, on the filing of the annual settlement at the proper time, the court may during the term order a sale of the realty without petition and order to show cause.-Day v. Graham, (Mo.) 11 S. W 55.

29. It is no ground for setting aside an administrator's sale, that the only debts due by the estate at the time of the sale were debts secured by mortgage on the land in question.-Day v. Graham, (Mo.) 11 S. W. 55.

30. Two tracts were sold to decedent's surviving partner, subject to two mortgages, and by his direction the deed to one tract was made to defendant, who had married decedent's widow. No money was paid to the administrator, but he charged himself with the amount of the bid, and credited himself with a claim held by the surviving partner, as he alleged, by agreement of both defendant and the partner. No such claim was ever allowed against the estate, but it appeared that the surviving partner received as devisee such claim against the firm, which he agreed to cancel if defendant would pay off the mortgages on the land sold, as he did, the surviving partner making no objections in his life-time. Held, that the heirs of the surviving partner were not enti tled to have the deed to defendant set aside for want of consideration.-Day v. Graham, (Mo.) 11 S. W. 55.

FALSE PACKING.

Indictment.

Pen. Code Tex. art. 470, prescribes a punishment for putting into any hogshead, cask, bale, etc., containing merchandise usually sold by weight, any article of less value than that with which it is apparently filled, and also for selling or offering for sale such falsely packed bale. Article 471 makes it an offense to conceal in a cask, bale, etc., any merchandise of inferior quality to that with which it is apparently filled, or of less value. The indictment charged the sale of a bale of cotton which contained inferior cotton to that with which it was apparently filled. Held, that it charged no offense, as the selling of a bale so packed is not an offense under the latter section. Lidtke v. State, (Tex.) 11 S. W. 629.

FALSE PRETENSES.

Indictment.

1. Defendant obtained from his debtor, by false pretenses, two drafts, in excess of the amount due him. Held, that the indictment properly charged obtaining the drafts, and not the excess, by false pretenses.-Pruitt v. State, (Ark.) 11 S. W. 822.

2. An indictment for swindling which alleges every element of the offense, and sets out verbatim the instrument by means of which it is alleged to have been accomplished, is sufficient.Scott v. State, (Tex.) 11 S. W. 320.

3. On indictment for swindling, the charge being that defendant, by falsely representing the signatures to a petition presented by him to be genuine, obtained from the county judge a draft for an appropriation for certain school purposes, an instruction that, unless the signatures were there at the time of presentation to the judge, and that defendant's false and fraudulent declaration that they were genuine induced the issuance of the draft, defendant should be acquitted, is correct. Scott v. State, (Tex.) 11 S. W. 320.

4. Under Crim. Code Ky. § 128, providing that, if an indictment for an offense involving an injury to property describes such offense with sufficient certainty to identify the act, an erroneous allegation as to the ownership of such property is not material, an indictment for obtaining money by false pretenses, which describes the money obtained, and alleges that it was not the property of the accused, is sufficient, though it alleges that the money belonged to a married woman, who is shown to have had no separate estate.-Hennessy v. Commonwealth, (Ky.) 11 S. W. 13.

5. A conviction for swindling, by presenting a petition and representing false signatures to be genuine, cannot be sustained where the county judge, who issued a check in response to the petition, testifies that he cannot say that the signatures were on the petition when it was presented to him; that it is as probable that they were not as that they were; and that he does not remember any statement or declaration made by defendant in regard to the signatures. Scott v. State, (Tex.) 11 S. W. 320.

Fees.

Of clerk of court, see Clerk of Court.

2. If, after the person whose crops were thus exposed restored the fence, the owner also pulls this down, he violates Pen. Code Tex. art. 684, forbidding a person to break, pull down, or injure the fence of another without his consent, etc.-Jamison v. State, (Tex.) 11 S. W. 483.

Cutting fences-Indictment.

3. An indictment for cutting fences under Pen. Code Tex. art. 683, providing for the punishment of offenses against property not otherwise provided for, is bad; such injury to fences being covered by articles 684 and 684a.-White v. State, (Tex.) 11 S. W. 643.

4. A tenant was indicted for cutting a fence on his rented farm, and testified that he did it to get a better road-way, and avoid driving over his cotton crop. Held, that instructions that he had the right to open the fence for his own convenience, if he did no injury to another, and should be acquitted if he did not cut the fence maliciously, should have been given.-White v. State, (Tex.) 11 S. W. 643.

Obstruction.

FERRY.

1. By Mansf. Dig. Ark. § 3311, no ferry can be kept nor tolls collected without a license; and, by section 3319, such licenses are granted for a term by the erection of a bridge across and within the of one year. Held that, in an action for damages limits of plaintiffs' ferry-right, the complaint must state that plaintiffs, or those under whom they claim, had a license after the bridge was constructed; that they were authorized to receive tolls; that damage was occasioned by building the bridge; that defendant unlawfully collected tolls; and that plaintiffs had other riparian rights in the land upon which the bridge rested. Following Organ v. Railroad Co., 11 S. W. 103.-Hanger v. Little Rock J. Ry. Co., (Ark.) 11 S. W. 965. Assignment of right.

2. A written agreement between the owner of land on a navigable river, who has also a license granted by the county court to operate a ferry from his land to the opposite shore, made in 1827 with one owning land on the latter shore, by which the ferry proprietor for a valuable consideration is to discontinue his ferry forever, and to allow the second party a landing and road on his land, without molestation from him or his heirs, does not invest the second party with a ferry franchise, as, under the statutes then in force, the right to ferry could be obtained only by an order of the county court. -Scott v. Wilson, (Ky.) 11 S. W. 303.

3. Neither would such agreement prevent the exercise of a ferry license afterwards granted to one who had acquired title to the land of such former proprietor by the licensee or those claiming under him.-Scott v. Wilson, (Ky.) 11 S. W. 303.

4. However long the second party might have maintained a ferry under the agreement, either in front of the land of the former proprietor or elsewhere, without a license from the county court, such user would not ripen into a right. - Scott v. Wilson, (Ky.) 11 S. W. 303.

Fires.

FIXTURES.

Vendor and vendee.

Where premises, upon which is situated an ice-house partly filled with ice, are sold, and nothing is said as to the ice during the negotiations, nor in the deed, nor when possession is given to the vendee, and no reservation is made by the vendor of a right to enter upon the premises, and use or remove the ice, the ice is to be regarded as a fixture, intended by the parties to be enjoyed with the realty, and constructively annexed thereto, and passes to the vendee with the freehold.Hill v. Munday, (Ky.) 11 S. W. 956.

Pleading.

2. An allegation in a complaint in an action of unlawful detainer that defendant "has heretofore been a tenant at will of said real property, and that said complainant is entitled to the actual possession of the same, "is insufficient to show the relation of landlord and tenant between the parties, under Rev St. Tex. art. 2445, requiring the complaint "to state the facts which entitle the complainant to the possession, and authorize the action."-Gulledge v. White, (Tex.) 11 S. W. 527.

Foreclosure.

Of mortgage, see Mortgages, 8-10

Forfeiture.

FRAUD.

See, also, Assignment for Benefit of Creditors; Fraudulent Conveyances.

As affecting statute of limitations, see Limitation of Actions, 12-14.

In attachment, see Attachment, 14, 15. exchange, see Exchange, 1.

What constitutes.

1. Defendant held 10 of 30 notes executed by a milling corporation, and secured by a deed of trust on its property. To retire the notes and meet other liabilities, another deed of trust to secure agreed to exchange his notes for bonds and addi100 bonds of $1,000 was executed, and defendant tional security, the first deed to be canceled. Relying on this exchange, plaintiffs and others bought the bonds or exchanged notes for them. Before the agreement was carried out the corporation suspended payment, and defendant attempted to foreclose the first deed of trust, alleging that the president of the corporation had procured the agreement by fraudulently misrepresenting the value of the property and the amount of the liens thereon. The president had represented that ac

Waiver of, see Canals.

FORGERY.

Evidence, see Criminal Law, 44.
Indictment.

1. An indictment for forgery of an instrument which does not on its face create any liability must by innuendo averments show the facts or reasons why the instrument declared to be forged creates a liability.-King v. State, (Tex.) 11 S. W.

525.

2. Rev. St. Mo. §§ 2107, 2108, make it the duty of the clerk of the court, when the state is liable for costs, to tax the same, and make out and deliver to the prosecuting attorney a "fee-bill," which the latter must examine and report to the judge, and, if correct, the judge and prosecuting attorney must certify the same to the state auditor. Held, that an indictment which charged defendant with forging a "fee-bill" was not defective on the ground that it should have charged forging a certificate to a fee-bill, where the indictment showed that the instrument alleged to have been forged was a certified fee-bill.-State v. Haws, (Mo.) 11 S. W. 574.

Evidence.

3. On a trial for attempting to pass a forged check on a bank, it appeared that when defendant presented the order he was told that the apparent drawer had not enough money on deposit to pay the order, but that the bank would pay it if it was given in payment for cattle, and, on being asked if this was the case, defendant said "No," left the bank, and did not return. The evidence as to whether the apparent drawer signed the check was conflicting. It appeared that he died about the time the check was presented, or shortly afterwards, but there was no evidence that defendant knew of his death, and no evidence that he did not authorize defendant or some one else to sign his name to the check. Held, that a conviction could not be sustained.-Leeper v. State, (Tex.) 11 S. W. 644.

Instructions.

4. On indictment of a clerk for forging a feebill, it appeared that the judge's name was forged to the fee-bill while it was in possession of defendant, who sent the fee-bill to the state auditor and received payment thereof. Held, that an instruction that, "unless he explains or accounts for such forgery, such facts are strong and cogent circumstances to show the defendant's guilt, and may be sufficient to warrant the jury in finding the defendant guilty," is not reversible error, where other instructions impose the burden of proof on the state throughout the case.-State v. Haws, (Mo.) 11 S. W. 574.

men and architects the property was worth $200,000, and it had cost that sum, but it subsequently · depreciated in value. The only reference to the liens was made in a letter by the president, in which he alluded to the second deed as the only lien when the first should be discharged, but he evidently had no other liens in his mind at the time but the two under consideration. Other debts existed to the amount of $30,000 or $40,000, a part only being liens, but they were of such a character that defendant, who had long been intimately acquainted with the affairs of the corporation, was probably aware of them. Held, in an action to enjoin the sale under the deed of trust, that the defense of fraud in procuring the agreement was not sustained.-German Sav. Inst. v. Jacoby, (Mo.) 11 S. W 256.

Pleading.

2. Plaintiff, within the six months limited by statute for that purpose, filed a petition attacking a mortgage as a preference; alleging that the money so obtained was used in large part to pay a pre-existing debt to the W. Bank. More than six months after the date of the mortgage plaintiff filed an amended petition, making the W. Bank defendant, and alleging actual fraud by the mortgagee and defendants, in addition to the illegal preference. A second amended petition also averred both illegal preference and actual fraud, but did not aver that the W. Bank was a party to the fraud. The W. Bank answered to all the petitions, and denied fraud on its part. Plaintiff demurred to the answer, the demurrer was overruled, and made to relate to the petitions so far as the W. Bank was concerned, and was sustained as to them, and the action dismissed as to the bank. Held that, though the second amended petition did not allege actual fraud, the bank's answer raised that issue, and plaintiff had a right to have it tried, and that the demurrer was improperly sustained.-Northern Bank of Kentucky v. Warsaw Deposit Bank, (Ky.) 11 S. W. 16.

FRAUDS, STATUTE OF.

Debt of another.

1. Where plaintiff agreed with defendant that certain money in the hands of the latter belonging to the former might be applied in payment of the debt of a third person to defendant, and the money was accordingly so applied, plaintiff cannot recover it back on the ground that the agreement was oral, and therefore within the statute of frauds.-Central Tex. Min., Manuf'g & Land Co. v. Weems, (Tex.) 11 S. W. 270.

2. The fact that defendant held the money as plaintiff's trustee is immaterial. - Central Tex. Min., Manuf'g & Land Co. v. Weems, (Tex.) 11 S.

W. 270.

Agreements relating to land.

3. An undelivered deed to a third person, to which plaintiff is a stranger, and to connect him with which there is no written memorandum, is not sufficient to take a contract for the sale of land out of the statute of frauds, where it appears that the third person repudiated the contract.Henderson v. Beard, (Ark.) 11 S. W. 766.

4. A contract signed by defendant's agents to sell land on credit, and retain a lien for the price, is not a sufficient memorandum to take the contract out of the statute of frauds, where the agents are simply authorized to sell the land, as the contract signed by them is unauthorized.-Henderson v. Beard, (Ark.) 11 S. W. 766.

5. A parol contract for the purchase of land accompanied by the payment of the price, no improvements being made, cannot be specifically enforced by the purchaser, though he has taken possession.-Bradley v. Owsley, (Tex.) 11 S. W. 1052.

FRAUDULENT CONVEY

ANCES.

See, also, Assignment for Benefit of Creditors;
Chattel Mortgages; Fraud.

Assignment of judgment, see Estoppel, 5.
What constitutes.

1. A conveyance by an insolvent debtor, for a consideration of love and affection, of his expectancy in his living father's estate, will not be upheld in equity as against creditors who were such either at the date of the conveyance or at the date of the father's death.-Read v. Mosby, (Tenn.) 11 S. W. 940.

2. Land was conveyed to the wife of a judgment debtor, and part of the price was paid, and two notes for the balance secured by a lien retained on the land were given by the debtor and wife. The wife's father gave her $800, which were paid on the land, and also gave her $500 in addition and took a mortgage on the land for $1,300, but not as evidence of indebtedness. The judg ment debtor paid one of the notes with his money. In an action by the judgment creditor to set aside the deed, held that, whether the payment of the note on which the debtor was bound as surety for his wife was treated as entitling him to subrogation to the rights of the lienholder, or whether it was treated as a gift to the wife, it should be treated as an investment in the property for his benefit so far as his creditors were concerned, and that the property being indivisible, should be sold for the payment of the judgment, but subject to the $800 given to the wife, and the remaining purchasemoney note.-Hinkle v. Gale's Adm'x, (Ky.) 11 S. W. 664.

Consideration.

3. Evidence that defendant, at the husband's request, went on a long journey, investigated the title to certain property of the husband, and succeeded in clearing it from outstanding tax-titles and adverse claims, and that his services were worth about $500, shows a valuable consideration for a conveyance of 1,023 acres of land, then worth about 50 cents per acre.-Moore v. Moore, (Tex.) 11 S. W. 396.

4. A husband, some time prior to conveying certain land to his wife, furnished a creditor with a statement of its value, which he stated was a fair estimate, and less than he would sell it for, but which was largely in excess of the consideration expressed in his deed to his wife. In an action involving the validity of that deed, he testified that the statement was understood to show the prospective, and not the cash value of the property. Held, that the statement was admissible, as tending to impeach his testimony that the actual value was much less than that shown in the statement.-Torrey v. Cameron, (Tex.) 11 S. W.

840.

5. It is proper to charge that if a husband, being indebted to his wife in a large amount, conveyed the property in question to her in satisfaction of a portion of the indebtedness, and that, if

more property was so conveyed than was reasonably required to discharge such portion of the debt, the conveyance would be void as to creditors. The fact that he owed her other sums not included in the conveyance is no protection, but rather additional evidence of fraud.-Torrey v. Cameron, (Tex.) 11 S. W. 840.

6. An instruction that the value of property is "what it would sell for in cash, in the ordinary course of trade, in the manner in which property is ordinarily sold in this market," is proper.Torrey v. Cameron, (Tex.) 11 S. W. 840.

Confidential relations.

7. At the time of marriage, the wife was the 000. The husband, being desirous of selling the owner of land and personalty to the value of $15,property and investing it in G. county, finally persuaded the wife to sell it, on an agreement that the proceeds should be invested for her in G. The land was sold, and the husband bought about 40 acres, taking the title in his own name. This, together with a portion inherited from his father, he conveyed to her. Held, that the conveyance would not be set aside at the instance of one who held a note on which the husband was surety, as collateral security for a debt in which neither the husband nor the wife had any interest, or from which they had ever derived any benefit.-Doty v. Louisville Banking Co., (Ky.) 11 S. W. 78.

8. The agreement being that the husband would convey to the wife his land in G. county, “as far as it goes, " it was improper to limit the conveyance to the land inherited from the father, and to set it aside as to the tract purchased.-Doty v. Louisville Banking Co., (Ky.,) 11 S. W. 78.

9. A charge that a deed to land was made to the wife of the purchaser in order to defraud the latter's creditors, is not sustained when it is not alleged that the husband was in debt, nor that he owned no other property, nor that he paid for the land, and there is no proof that he was insolvent, though there is proof that he paid for the land, and that he owed plaintiff a small debt.-Knight v. Glasscock, (Ark.) 11 S. W. 580.

Secret trusts.

10. A father became liable as surety for about $300 in 1866, and suit, in which judgment was rendered, was begun in 1869. In 1867 he sold his farm and personalty for about $5,000, and removed from the state, returning in 1868 or 1869. In 1869 some land was conveyed to his sons for about $5,000, and they afterwards bought more for $2,000. The sons were aged 21, 17, 14, and 6 at the time of the conveyance, and had no property. They lived with their parents on a rented farm. The conveyances were made to them jointly, and the oldest gave a mortgage for the purchase money. He gave his father a note for about $3,000, an alleged loan, which indorsements showed to have been paid, and both father and sons stated that this sum was used in payment for the farm, and that it and the residue of the purchase money was paid by the sons from their crops. They stated also that the father refused to lend the money to the elder son unless he would let the other sons have an interest in the land. Their farming was extensive and very profitable, and they managed the land without being controlled by their father. For three years, in the earlier part of their operations, they used their father's teams. Their statements as to the payments to their father were corroborated by others. Held, that the evidence was insufficient to establish the fact that the land was purchased with the father's means, and conveyed to the sons with intent to defraud his creditors.-Mott v. Purcell, (Mo.) 11 S. W. 564. Rights of creditors.

11. A purchaser from a bona fide grantee takes a good title, though he purchases with notice that the conveyance to his grantor was for the purpose of defrauding the original grantor's creditors.Bergen v. Producers' Marble Co., (Tex.) 11 S. W. 1027

12. A judgment for bona fide debts confessed by an insolvent, with the intention of defrauding other creditors, the judgment creditor knowing