EMBEZZLEMENT.

See CRIMINAL LAW, 14.

EMPLOYMENT OF TEACHER.

See SCHOOLS AND SCHOOL DISTRICTS, 3.

EQUITIES.

See SUBROGATION, 2.

Equal.-Priority of Time.-If the equities of two parties are equal, the one first in point of time is the superior one. Paxton v. Sterne, 289

ESTOPPEL.

See CHATTEL Mortgage, 3; FRAUDULENT CONVEYANCE, 6; HUSBAND AND WIFE, 2; LIFE INSURANCE, 2, 5; MARRIED WOMAN; WILL, 2.

EVIDENCE.

See BASTARDY, 1; COMMON CARRIER, 1; CRIMINAL LAW, 4, 6, 7, 10, 13, 21; DRAINAGE, 1; GUARDIAN AND WARD, 4; INJUNCTION, 2, 3, 5, 6; LEASE; MALICIOUS PROSECUTION; MORTGAGE, 1; NEGLIGENCE, 2, 3; PAYMENT, 1, 2, 4; SUPREME Court, 1.

1. General Objections.-General objections to evidence are unavailing, and only such objections as are specifically stated will be noticed on appeal. Litten v. Wright School Tp, 81 2. Same.- Witness's Interest.-An objection that certain letters given in evidence were written after the notes in suit had been assigned, is unavailing where the letters are competent as tending to show the interest of some of the witnesses in the cause. Ib. 3. Expert Testimony.—Instruction.- Weight.--Interest.-An instruction that "The jury, in judging of the weight of expert evidence should consider the character of the witness and the interest, if any, he has in the case," is erroneous. Duvall v. Kenton, 178

4. Lease. Executed Copy Admissible without Accounting for Original.--A lease was duly executed by the parties. Some time afterward one of the parties had a copy made, and both parties then signed such copy. This copy, in an action to reform the lease, was attached to the complaint as an exhibit.

Held, that it was admissible in evidence without first showing the loss of the original lease. Weaver v. Shipley, 526

5. Same. In an action to reform the description in a lease, the statements of the parties while negotiating the lease, are admissible to locate the land and the terms upon which it was let. Ib.

EXECUTION.

1. Sale.-Separate Bids.--Holding in Abeyance.-The sheriff, under an execution, first offered the lots for sale separately. The judgment debtor, through his attorney, bid for the separate parcels a sum insufficient to satisfy the execution, and the sheriff held the bids in abeyance until he offered the property as a whole. The debtor, whose bid on the property at that time was the highest, being unable to pay the full amount bid, the attorney, on the refusal of the sheriff to grant an extension of time, withdrew his last bid, and the property was sold to another for more than the aggregate amount of the separate bids.

Held, that the sale was valid, as there was no abuse of discretion by the sheriff. Barnes v. Zoercher, 105

2. Judgment Obtained by Fraud.-A party who pays a claim and enters into an agreement providing for the dismissal of the action brought on

the claim is guilty of a fraud if he subsequently causes witnesses to be subpoenaed and costs to be taxed against his adversary. Greenwaldt v. May, 511

3. Same.-Judgment for Costs.--Injunction.—Equity will enjoin the collection of a judgment so obtained before a justice of the peace, as a justice of the peace has no authority to review his own judgment on the ground of fraud, and injunction is the only adequate remedy. Ib. EXHIBIT.

See PARTITION, 2.

EX PARTE ORDER.

See GUARDIAN AND WARD, 1, 3.

EXPERT TESTIMONY.
See EVIDENCE, 3.

EX POST FACTO LAW.

See CRIMINAL LAW, 2.

FACTORS AND BROKERS.

Real Estate Agent.--Exchange-Commission from Both Principals.- Where a real estate broker, with property in his hands for sale, brings together the owner thereof and another owner who employs him to make an exchange, he is entitled to compensation from the latter, if he acts in good faith, and the parties make their own bargain uninfluenced by his representations. Cox v. Haun, 325

FEES AND SALARIES.

See COUNTY AUDITOR.

FINDING

See INJUNCTION, 4.

1. Special and General.- Where the court is not asked to make a special finding, a finding made by it will be treated as a general finding. Jacobs v. State, 77

2. Special. No Request.--A special finding made by the court without a request by one of the parties will be treated only as a general finding. Weaver v. Shipley, 526

FINE.

See CRIMINAL LAW, 20.

FORECLOSURE.

See MORTGAGE; REAL ESTATE, ACTION TO RECOVER, 1, 2; TAXES.

FORFEITURE.

See OFFICE AND OFFICER, 3.

FRANCHISES.

See CORPORATION.

FRAUD.

See PARTITION, 4.

1. Special Finding.-Fraud must be found and stated in a special finding as an inferential or ultimate fact, and it is not enough to state the badges, or evidences, of fraud.

Farmers, etc., Co. v. Canada, etc., R. W. Co., 250 2. Concealment by Attorney of Material Fact.-If an attorney misleads his client, who is relying upon him, by the fraudulent concealment of

material matters or by false statements, the transaction will be an-
nulled by the courts.
McLead v. Applegate, 349

FRAUDULENT CONVEYANCE.

1. Trustee.-Lien of Judgment.—Proof of Consideration.—Assumption of Debt by Grantee.-Preference of Creditors.-W. was indebted to M. who was in failing circumstances, and said M. was indebted to A., G., B., T., L., I. and others. I had a judgment against M. on his debt. W. conveyed a tract of land to A., in consideration of A. paying W.'s debt to M. and assuming the debts of G., B., T. and L., and cancelling his own debt against M. M. assented to this arrangement. Held, that it was error to refuse to allow W., after having fully testified to the arrangement, on cross-examination, to testify that part of the consideration was the assuming of M.'s debts to G., T. and others. Held, also, that it was not error to allow him to testify on cross-examination that M. desired to pay his debts; that he was willing to agree to any arrangement to pay them off; that he, W., after seeing M., went to A. and A. agreed to take the tract at the price named by W. in payment of his debt from M., and that M. agreed to pay certain other of A.'s debts due to G., T. and others. Held, also, that A. was not a trustee for W.; that I.'s judgment was not a lien on the land conveyed; that a sale of such land upon execution issued on said judgment was void, if the transaction was entered into and carried out in good faith; that it made no difference how A. paid L., G., B. and T., and that I. could not object on the ground that he was not a preferred creditor. McCormick v. Smith, 230 2. Action to Set Aside. — Pleading. — Necessary Averments.—In a suit by a creditor to set aside a conveyance of property on the ground that it was made to defraud creditors, an averment that at the time the suit was brought the debtor had no property out of which the debt might be collected, or an averment equivalent thereto, is material and necessary, and its omission is fatal. Brumbaugh v. Richcreek, 240 3. Same.-Debtor's Unsoundness of Mind. - Advantage Taken of by Grantee. -A creditor can not avoid a conveyance made by his debtor solely because the debtor was of unsound mind when he made it. Nor does the fact that the grantee, knowing of the debt and of the debtor's mental weakness, took advantage of such weakness for the purpose and with the intention of thereby defrauding the creditor, authorize the creditor to appeal to a court of equity to set aside such deed, unless he is injured thereby. Ib. 4. Action to Set Aside.--Rights of Creditors.--A creditor can not maintain for his own benefit a suit to set aside a fraudulent conveyance made by a debtor who afterwards executes a voluntary assignment for the benefit of creditors where the trust is accepted and fully administered, although neither the assignee nor the creditor has any knowledge of the fraudulent conveyance until after the final settlement of the trust and the discharge of the assignee. Voorhees v. Carpenter, 300 5. Assignment.-Creditors Preferred by Mortgages Given Them.-Part of Assignment. A debtor in failing circumstances and contemplating making an assignment of all his property for the benefit of his creditors, may prefer such of his creditors as he sees fit to do so, by executing to them mortgages upon his property to secure their debts; and if the transaction is in good faith it matters not how short an interval of time there is between the execution of such mortgages and the deed of assignment, so that the former, in point of time, in their execution, precede the latter. Such mortgages do not become a part of the assignment, and are not to be taken in connection with the deed thereof. Carnahan v. Schwab, 507

6. Plaintiff Himself Having Conveyed Land Sought to be Reached is not Estopped.--Collateral Attack on Decree of Settlement.-- A father bequeathed his real and personal estate to his wife during her life, to be used and enjoyed by her as she might direct. The real estate, however, could not be sold nor disposed of until after her decease, unless it was necessary for her support and maintenance after the personal property had been exhausted. The rents and profits were given to the wife. After the death of his wife, all his real estate, and such of his personal estate as she had not consumed, were given, in equal parts, to his three children, John, George and Mary. His wife qualified as executor, and loaned George, of the assets of the estate, several thousand dollars, taking his notes due to herself personally. After his mother's death John qualified as executor of his father's will and recovered judgment on the notes in favor of his father's estate, and it was a part of the judgment that no execution should issue upon the judgment until the estate was settled. At the final settlement of the estate, this judgment against George was assigned, by decree of the court, to John, and it was decreed that there was due thereon from George to John a specified amount. In an action by John against George to subject the interest in the real estate which he had inherited from his father, and which it was alleged he had fraudulently conveyed to his wife, and that he was insolvent to this decree,

Held, that the complaint stated a good cause of action, and that there were not two or more causes of action improperly joined; that John was not estopped from subjecting the real estate that George had fraudulently conveyed to his wife to his claim, by reason of the fact that he, John, had himself conveyed all his interest therein by a warranty deed, he having the right to prosecute the action for the benefit of his grantee and to save himself from liability on his warranty; that the decree in the settlement of the father's estate settled the right of John to recover the balance due on the judgment against George, and that that fact could no longer be controverted.

New v. New, 576

7. Same.-Statute of Limitations.- Practice.-Immaterial Error.-The wife of George plead the six years' statute of limitations. Held, that the facts alleged in the complaint, which were not controverted and were matters of record introduced in evidence, showed that the cause of action arose within six years previous to the commencement of the action, and that there was no available error in sustaining a demurrer to the answer. Ib.

GOVERNOR.

See MANDAMUS, 2.

GRAND JURY.

See CRIMINAL LAW, 1.

GRAVEL ROAD.

1. Assessment in Part Valid.-Injunction.-If any part of an assessment for a free gravel road made against the land of an owner seeking to enjoin its collection is valid, he can not have an injunction until he has paid the part that is valid. Loesnitz v. Seelinger, 422 2. Same-Assessments are Several.—Judgment in Favor of One Land-Owner does not Aid Another.-Assessments for the purpose of building a free gravel road are several and not joint; and the fact that some of the parties whose lands have been assessed for such improvement have procured a decree declaring the assessments, as to them, void, does not affect those who have procured no such a decree.

Ib.

3. Same.-Part of Assessment Illegal.-Collateral Attack.-Rule as to Tax Illegal in Part does not Apply.-The fact that a part of an assessment for a free gravel road is illegal does not render such assessment void, although the illegal can not be separated from the legal part; and such assessments can not be collaterally attacked, the remedy being by appeal. The rule applicable to a tax illegal in part and inseparably connected with the part that is legal, does not apply to such an

assessment.

Ib. 4. Same.-Contract for Construction in Part Illegal.-The fact that a contract for the construction of a free gravel road is in part illegal will not render the assessments void, nor will the fact that the cost of the work exceeds the estimates, render the assessments, within the estimate, void. Ib.

Ib.

5. Same.-Purchaser of Bonds not Responsible for Proper Application of Funds thus Raised.-Assessments not being made to pay off the contractor, but to pay off the bonds issued to raise money to pay him, many objections that might otherwise be raised to the contractor's collecting such assessments can not be made when the county seeks to collect them. The purchasers of such bonds are not responsible for the proper application of the funds raised by the sale of the bonds. 6. Same Effect of Judgment Approving Report of Assessment of Benefits The order of the board of commissioners approving and confirming the report of the assessment of benefits and damages has the force and effect of a judgment against the owner of the land who has been properly notified, in so far as it affects the land, as much so as any other judgment of competent jurisdiction. Ib.

GUARDIAN AND WARD.

See CRIMINAL LAW, 14; TRUST AND TRUSTEE, 3, 4.

1. Guardian.-Void Order of Removal.-Collateral Attack-An ex parte order of the circuit court removing a guardian, made without notice to the guardian, and without appearance by him, is void and may be collaterally attacked. Colvin v State, 403 2. Action on Bond.--Burden to Show Breach.-Exceptions to Report - Burden.--In an action on a guardian's bond the burden is on the relator to show a breach of its condition; but on exceptions to his report the burden is on him to show that the money expended was for the best interests of his ward State, ex rel., v. Wheeler, 451

3. Same.--Ex Parte Orders.--Effect.--Collateral Attack.--Ex parte orders made by the court in a matter of a guardianship, whether by way of direction to the guardian, or of approval of action theretofore taken by him, are regarded as prima facie correct, but, as a rule, are within the control of the court making them until final settlement of the guardianship. At any time before final settlement and discharge of the guardian they may be set aside, corrected, or modified, but they can not be collaterally attacked, as in a suit upon the guardian's bond for a misapplication of the funds of the trust. The only attack that can be made upon them is in a direct proceeding in the court having control over them.

Ib. 4. Same.--Action on Bond-Plea of Payment.-Evidence.-In an action upon a guardian's bond for misapplication of the funds of the trust, under the general denial, the guardian may show an application of such funds pursuant to orders of the court, a plea of payment being unnecessary; and a witness may testify to the payment of the money pursuant to such orders, and to the fact that he ascertained the amount by calculation required to be paid over.

Ib.