action for trespass, the former being merely a possessory action.-RICHARDSON V. CALLIHAN, Miss., 19 South. Rep. 95.

225. TRESPASS-Rights of Wrongdoer to Maintain.-A girl of 18 was accustomed to help her father in the business of his farm. The father said that he left her in charge of his farm on the day in question, as he left for a few hours: Held, that the daughter was not thereby empowered to resent by force an entry upon a part of the farm that had legally been condemned for public use.-EAST JERSEY WATER Co. v. SLINGERLAND, N. J., 33 Atl. Rep. 843.

226. TRIAL-Directing Verdict.-Where plaintiff's testimony, if believed, was sufficient to support a verdict in his favor, it was error to direct a verdict for defendant, though plaintiff's evidence was uncorroborated in any, and contradicted in many, material points, and he was shown to have made statements, purposely false, out of court, contradicting his testimony.O'BRIEN V. CHICAGO & N. W. RY. Co., Wis., 66 N. W. Rep. 363.

227. TRUST-Agreement to Pay Interest.-A circular was issued under the heading "Depositors' Co-operative Association," signed by one as "Manager," inviting deposits, on which interest would be paid semiannually. Plaintiff made a deposit with the manager, taking a certificate reciting that the money should remain one year, and bear interest at 6 per cent., but might be sooner drawn on notice, and, in case drawn before six months, no interest would be paid: Held, that the relations created by the deposit were those of debtor and creditor, and that no trust was created, but the money became at once the property of the association or manager.-LEAPHART V. COMMERCIAL BANK OF COLUMBIA, S. Car., 23 S. E. Rep. 939.

--

228. TRUSTEE Services Inconsistent with Trust.Where a partner, as a club member, becomes one of a club committee to purchase real estate for it, expressly agreeing to charge no commission, and that the club shall have the benefit of any bargain made, the club are entitled, as against the partnership, to a commission allowed by the vendor.-REDHEAD V. PARKWAY DRIVING CLUB, N. Y., 42 N. E. Rep. 1047.

229. USURY-Intent.-The price of property sold in good faith may be included in the same security with money loaned, and the fact that the price was large, and more than the property could have been sold for, does not necessarily condemn the transaction as usurious. The inquiry in such a case is whether, upon the evidence, there was any corrupt agreement or device, or shift, to receive or take usury; and in this aspect of the case the quo animo as well as the acts of the parties is most important.-SAXE V. WOMACK, Minn., 66 N. W. Rep. 269.

230. USURY- Joint Note. Where three persons jointly liable on a note, after making payments thereon, including usury, separate their liability for the balance by each giving an acceptance for his share thereof, a deduction for usury may be had in an action on one of such acceptances; but the deduction shall be only a proportional part of the usury, though the other acceptances have been paid without any claim for such deduction.-DEPOSIT BANK V. ROBERTSON, Ky., 34 S. W. Rep. 23.

231. VENDOR AND PURCHASER - Breach-Tender of Performance.-Plaintiff paid $500 on the execution of a contract to convey land. The contract represented that there was on the land only a mortgage of $1,000. A mortgage for $1,500 additional, of which the vendor had no knowledge, was being foreclosed when the $500 was paid; and after the date fixed for performance of such contract there was a decree of foreclosure, under which the land was afterwards sold: Held, that a tender of performance by plaintiff was necessary to entitle him to maintain an action for breach of such contract.-ZIEHEN V. SMITH, N. Y., 42 N. E. Rep. 1080. 232. VENDOR AND PURCHASER-Specific Performance -Equity.-Where a vendor of land sues to enforce a

specific performance of an executory contract by the purchaser, although the substantial part of the relief asked is the recovery of money, and though he also asks the enforcement of a vendor's lien, the action is clearly triable in equity.-GATES V. PARMLY, Wis., 66 N. W. Rep. 253.

233. WILLS-Ademption of Bequest.-A general bequest to a child, of a share of testator's personalty, may be satisfied pro tinto by a conveyance of real estate during the life of the testator, where such is the clear intention; such conveyance not operating as a revocation of the bequest, but as a satisfaction.-CARMICHAEL V. LATHROP, Mich., 66 N. W. Rep. 350.

234. WILLS- After-acquired Land.-Testatrix, after giving a legacy to one of her children for her separate use, devised "all" of her land to other children and a grandchild, specifying of what such land consisted, and also gave, to one of the children to whom the land was given, a legacy reciting that it was given to make him "even" with the other children on account of advances previously made them. She then directed her debts to be paid out of the "balance" of her "property," and, "should there be anything left," provided that it should be divided among her own children, to whom the land in part was given: Held, that afteracquired land passed under the will.-WEBB V. ARCHIBALD, Mo., 34 8. W. Rep. 54.

235. WILL-Life Tenants and Remainder-men.-Testator left his estate to his executors, in,trust, to receive and collect the rents of the real estate, and the Income and profits of the personal estate, and after deducting taxes and certain annuities, to pay the residue of the net income to his daughter during her life, the corpus of the estate to go to her children after her death. The executors invested a part of the estate in mortgages, which were foreclosed, they buying in the property, in order to protect the estate, for the amounts of the mortgages: Held, that the testator's daughter was entitled to the profits arising from the subsequent sale of such property at an advance.-IN RE PARK'S ESTATE, Penn., 33 Atl. Rep. 884.

236. WILLS-Mental Capacity-Evidence.-That testator for 10 years suffered greatly from a cancer in his face, which, before the execution of the will, had destroyed one eye, and partly destroyed the sight of the other, together with the opinion of non-experts, none of whom testified to any facts which could reasonably be made the foundation of an opinion, that testator was of unsound mind, is insufficient to sustain a verdict that testator was of unsound mind, as against direct evidence in support thereof.-RARICK V. ULmer, Ind., 42 N. E. Rep. 1099.

237. WILL-Mental Capacity-Non-expert Witness.A non-expert testifying to the mental capacity of a testator cannot, on re-direct examination, be asked his opinion of the mental capacity of a testator in a hypothetical case.-SAGAR V. HOGMIRE, Mich., 66 N. W. Rep. 326.

238. WITNESS-Juror-Competency.-A juror is a com. petent witness for a party in a suit on a trial before himself and fellows, where he testifies only as to the character of the party calling him.-WHITE V. STATE, Miss., 19 South. Rep. 97.

239. WITNESS-When Interested Adversely to Estate. -Under Rev. St. 1894, § 506 (Rev. St. 1881, § 498), providing that in suits in which an estate is interested, and to which its administrator or executor is a party, "any person who is a necessary party to the issue or record, and whose interest is adverse to such estate," shall be incompetent to testify against the estate as to matters occurring during the life-time of the decedent. In an action to charge an estate with a claim on the ground that the decedent was a member of ¡firm, another member of the alleged firm, though not a party, is incompetent to prove the partnership as against the estate, but he is competent to show the correctness of plaintiff's account.-LEACH V. DICKERSON, Ind., 42 N. E. Rep. 1031.

Central Law Journal.

ST. LOUIS, MO., APRIL 24, 1896.

The uncertainty of litigation is well illustrated by the final result of the case of State v. Withrow in the Supreme Court of Missouri, to which we called attention in a recent issue (42 Cent. L. J. 191) at the time the opinion of division No. 1 of that court was rendered. Thereafter the case went to the court in banc which has just reversed the decision of division No. 1 and awarded the writ of prohibition. The interesting part of the history of this case is that there is but one dissenterJudge Barclay,-in the court sitting in banc, though at the hearing in division No. 1 two of the judges reached a conclusion directly opposed to that to which they now assent. However there is nothing to prevent a judge from changing his mind especially in reference to a question so susceptible of two opinions as was this case. It involved the power of the circuit judges of the city of St. Louis to make rules governing the selection of "special juries" which, as was claimed by those who opposed the rules, in effect abolished such juries except in name, and were in derogation of the statute providing for special juries and of the State constitu

tion. Division No. 1 however did not so think. It was there held that the circuit judges had full power to frame rules governing the selection of special juries, and that an order of court requiring the jury commissioner to draw and furnish a special venire of "good and lawful men" without other designation of qualifications was valid. The court in banc however reached a different result. They argue that "special juries," as distinct from a common jury, were a feature of the common law and that our legislature, by adopting it, must be presumed to have done so with a full understanding of the meaning, force and effect "which that expression had acquired during its long sojourn at common law," that the constitutional guarantees as to trial by jury means that all the substantial incidents and consequences which pertained to the right of trial by jury are beyond the reach of hostile legislation, and that, therefore, it is neither in the power of law makers nor courts to take Vol. 42-No. 17.

away the right to a special jury or by the operation of rules force a litigant who lawfully asks for such a panel to accept anything else. Though the opinion of the court by Judge Sherwood is learned, exhaustive of the precedents and very plausible, it is not entirely convincing. While it is concededly beyond the power of courts to make rules in derogation of statutory or organic law, and though a certain kind of special jury was undoubtedly known to the common law, it is not clear that the rules adopted by the circuit judges in this case, regarding the manner of providing a "special jury" were beyond their jurisdiction.

Not long ago the Supreme Court of California reversed a case upon the ground of undue interference by the trial judge with the verdict of the jury. Mahoney v. San Francisco & San Mateo Ry. Co., 42 Pac. Rep. 969. The error consisted in language used by the court in the course of supplementary instructions to the jury which in effect compelled them to agree to a verdict. The recent case of State v. Kelley, 24 S. E. Rep. 45, was reversed by the Supreme Court of South Carolina upon the ground that the verdict was obtained through duress on the part of the court. It appeared that a jury in a prosecution for assault with intent to kill retired about 4 o'clock P. M., with the usual instructions about bringing in a sealed verdict. They were furnished with supper, and with breakfast the next morning. The sheriff was then instructed to give them noth

ing more to eat, and they remained in the room

until about 7 o'clock P. M. of the second day. They then came in at the direction of the judge, who, learning that their disagreement was one of fact, sent them back to the jury room, and some time during the night they rendered a sealed verdict. Before retiring the second time, the foreman said: "We have been in the room twenty-four hours and can't agree." It also appeared that on three separate occasions the jury had attempted, through the officer in charge, to communicate to the judge that they could not agree, and wished to be discharged. The recalcitrant member or members of the jury, under such duress of starvation, not unnaturally finally consented to a verdict, and the appellate court very properly holds, not only

that the jurors themselves had good grounds for complaint, but that a verdict rendered under such circumstances must be set aside and a new trial ordered.

NOTES OF RECENT DECISIONS.

WILL-ATTESTATION-ERRONEOUS NAME. It was held by the Supreme Court of California in Re Walker's Estate, 42 Pac. Rep. 815 that where a witness, in attesting a will, inadvertently wrote the surname of the testator instead of his own, there was no sufficient compliance with Civ. Code, § 1276, providing that each of the attesting witnesses must sign his name at the end of the will. The court was somewhat divided on the question, three of the members dissenting. The opinion of the court by Henshaw, J., contains an exhaustive review of the English authorities.

Officers-DE FACTO OFFICERS-ELECTION UNDER UNCONSTITUTIONAL LAW-COLLATERAL ATTACK.-The Supreme Court of Ohio decide, in State v. Gardner, 42 N. E. Rep. 999, that the official acts of public officers, in an office created by an unconstitutional statute of this State, performed before the statute has been declared unconstitutional by an authoritative decision of the courts of the State, cannot be collaterally attacked. Different courts have decided this question differently. Lynch v. People, 122 Ill. 420, 12 N. E. Rep. 726; Burt v. Railroad Co. (Minn.), 18 N. W. Rep. 285; Coyle v. Com., 104 Pa. St. 117; Mechem, Pub. Off., §§ 318, 327; Van Fleet, Collat. Attack, p. 33, § 21; Norton

V.

V.

above: People v. Weber, 86 Ill. 283; Brown O'Connell, 36 Conn. 432; Smith v. Linch, 29 Ohio St. 261; Clark v. Com., 29 Pa. St. 129; Campbell v. Com., 96 Pa. St. 344; State v. Brooks, 39 La. Ann. 817; Ex parte Strange, 21 Ohio St. 610. Shauck, J., dissented.

CONSTITUTIONAL LAW-POLICE POWER.— In People v. Smith, 66 N. W. Rep. 382, decided by the Supreme Court of Michigan, it was held that a statute requiring emery wheels used as machinery to be provided with blowers to carry away the dust arising from their operation, is not unconstitutional as class legislation, but valid as a police regulation for the benefit of the public welfare. The court said in part:

Shelby Co., 118 U. S. 425, 6 Sup. Ct. Rep. 1121; Hildrith's Heirs v. McIntire's Devisees, 1 J. J. Marsh, 206. The question was before the Ohio court for the first time. Bradbury, J., in announcing the decision of the court says that "while not insensible to the consideration justly due to the high standing of those courts and authors, we are bound to reach that conclusion which, in our judgment, is best sustained by sound reason, and that best comports with an enlightened public policy and the maintenance of public order." Spear, J., concurred in an opinion exhaustively reviewing the following authorities in addition to those cited

The case of People v. Warden of City Prison, 144 N. Y. 529, 39 N. E. Rep. 686, is an interesting one upon this question, and although the decision there laid down is criticised (perhaps justly) by Mr. Justice Peckham in a dissenting opinion, concurred in by two of his associates, the power to regulate private affairs where the public necessity exists is asserted in an exhaustive opinion by the same learned judge in the case of Health Department of New York v. Rector, etc., of Trinity Church, 145 N. Y. 32, 39 N. E. Rep. 833, in the course of which the power to regulate the appliances for manufacturing is asserted. 145 N. Y. 43, 44, 39 N. E. Rep. 833. The opinion says: "Hand rails to stairs, hoisting shafts to be inclosed, automatic doors to elevators, automatic shifts for throwing off belts or pulleys, fire escapes on the outside of certain factories, all these were required by the legis lature from such owner, and without any direct compensation to him for such expenditure. Has the legislature no right to enact laws such as this statute regarding factories, unless limited to factories to be thereafter built? Because the factory was already built when the act was passed, was it beyond the legis lative power to provide such safeguards to life and health, as against all owners of such property, unless upon the condition that these expenditures to be incurred should ultimately come out of the public purse? I think to so hold would be to run counter to the general course of decisions regarding the validity of laws of this character, and to mistake the foundation upon which they are placed." The trouble with these cases arises over the inability of the courts to fix a rigid rule by which the validity of such laws may be tested. Each law of the kind involves the questions: (1) Is there a threatened danger? (2) Does the regulation invade a constitutional right? (3) Is the regulation reasonable? In the present case no controversy is raised over the first of these. Hence we are not called upon to discuss it. As is implied by what has been said, the constitutional right to use property without regulation is plain, unless the public welfare require its regulation. If the public welfare does require it, the right must yield to the public exigency. And it is upon this question of necessity that the third question depends. All, then, seems to be embraced in the question of necessity. Unless the emery wheel is dangerous to health, there is no necessity, and consequently no power, to regu

late it. Unless the blower is a reasonable and proper regulation, it is not a necessary one. Who shall decide the question, and by what rule? Shall it be the legislature or the courts? And, if the latter, is it to be determined by the evidence in the case that happens to be first brought, or by some other rule? Does it become a question of fact to be submitted to the jury or decided by the court? Of all the devices known to human tribunals, the jury stands pre-eminent in its ability to determine cases in direct violation of and contrary to law, without impairing the binding force of the law as a rule of future action. We have known of instances where question of the constitutionality of the acts, as applied to the particular case on trial, has been made to depend upon the finding of the jury upon the facts in the case. But there is a manifest absurdity in allowing any tribunal, either court or jury, to determine from testimony in the case the question of the constitutionality of the law. Whether this law invades the rights of all the persons using emery wheels in the State is a serious question. If it is a necessary regulation, the law should be sustained, but, if an unjust law, it should be annulled. The first case presented might show by the opinions of many witnesses that the use of the dry emery wheel is almost necessarily fatal to the operative, while the next might show exactly the opposite state of facts. Manifestly, then, the decision could not settle the question for other parties, or the fate of the law would depend upon the character of the case first presented to the court of last resort, which would have no means of ascertaining whether it was a collusive case or not, or whether the weight of evidence was in accord with the truth. It would seem, then, that the questions of danger and reasonableness must be determined in another way. The legislature, in determining upon the passage of the law, may make investigations which the courts cannot. As a rule, the members (collectively) may be expected to acquire more technical and experimental knowledge of such matters than any court can be supposed to possess, both as to the dangers to be guarded against and the means of prevention of injury to be applied; and hence, while under our institutions the validity of laws must be finally passed upon by the courts, all presumptions should be in favor of the validity of legislative action. If the courts find the plain provisions of the constitution violated, or if it can be said that the act is not within the rule of necessity in view of facts of which judicial notice may be taken, then the act must fall otherwise it should stand. Applying this test, we think the law constitutional, and the judgment is therefore affirmed. The other justices concurred.

DURESS-SETTLEMENT OF DISPUTE. The Court of Civil Appeals of Texas decides, in Alexander v. Trufant Com. Co., 34 S. W. Rep. 182, that the fact that a creditor would be unable to continue his business unless payment for grain shipped the debtor should be promptly made, as provided in the contract of sale, of which fact the debtor was aware at the time of the sale, does not render a settlement of a dispute between them as to the grade of the grain, entered into by the creditor to secure prompt payment, invalid for duress. The court says:

If the defendant in error violated its contract under which the grain was shipped, the plaintiff in error had a remedy at law by which he could have enforced his rights and redressed his wrongs. He was a free man, with the courts of his country opened to him, without restraint, either actual or constructive, nor threatened either in life, limb, liberty or property, dealing with one who had not even the semblance of power to harm him, when he entered into the contract by which he says he was so greviously wronged. Courts in this country are not wont to lend a willing ear to the complaints of a man who shows that he has, for the purpose of obtaining a part of what is due him, voluntarily yielded his rights to one who has no power to harm him. If such complaints were favorably entertained, the man who has the courage to stand up for and maintain his rights would be placed at a serious disadvantage by any truckler who might choose to make them against him in our courts. We cannot better express our views on this point than by quoting the language used by Mr. Justice Cooley in a similar case. He says: "In what did the alleged duress consist in the present case? Merely in this: that the debtors refused to pay on demand a debt already due, though the plaintiff was in great need of the money, and might be financially ruined in case he failed to obtain it. It is not pretended that Hackley & McGordon had done anything to bring Headley to the condition which made this money so important to him at this very time, or that they were in any manner responsible for his pecuniary embarrassment, except as they failed to pay this demand. The duress, then, is to be found exclusively in their failure to meet promptly their pecuniary obligation. But this, according to the plaintiff's claim, would have constituted no duress whatever if he had not happened to be in pecuniary straits; and the validity of negotiations, according to this claim, must be determined, not by the defendants' conduct, but by the plaintiff's necessities. The same contract, which would be valid if made with a man easy in his circumstances, becomes invalid when the contracting party is pressed with the necessity of immediately meeting his bank paper. But this would be a most dangerous, as well as a most unequal, doctrine; and if accepted no one could well know when he would be safe in dealing on the ordinary terms of negotiation with a party who professed to be in great need." Hackley v. Headley, 45 Mich. 569, 8 N. W. Rep. 514. And of Mr. Justice Harlan in U. S. v. Silliman, 101 U. S. 465-471, when he says: "Instead, however, of seeking the aid of the law, claimants, with a full knowledge of their legal rights, executed new charter parties, and from time to time received payments according to the rates prescribed therein; protesting, when the new agreements were signed, that they were executed against their wishes and under the pressure of financial necessity. They now seek the aid of the law to enforce their rights under the original charter parties, upon the ground that those last signed were executed under such circumstances as amounted, in law, to duress. Duress of, or in, what? Not of their persons, for there is no pretense that a refusal on their part to accede to the illegal demand of the quartermaster's department would have endangered their liberty or their personal security. There was no threat of injury to their persons or to their liberty, to avoid which it became necessary to execute new charter parties; nor were those charter parties executed for the purpose or as a means of obtaining possession of their property. They yielded to the threat or demand of the department solely because they required, or supposed they required, money for

the conduct of their business, or to meet their pecuniary obligations to others. Their duty, if they expected to rely upon the law for protection, was to disregard the threat of the department, and apply to the courts for redress against its repudiations of a valid contract. We are aware of no authority, in the textbooks or in the adjudged cases, to justify us in holding that the last charter parties were executed under duress. There is present no element of duress, in the legal acceptation of that word. The hardships of particular cases should not induce the courts to disregard the long-settled rules of law." In that case the claimants had a strong adversary, the United States, who, through the quartermaster's department, demanded that they should execute a new charter party, containing stipulations essentially different, as to compensation, from those embodied in the contracts under which the government obtained possession of the barges; and it announced its purpose to retain possession, and withhold all compensation, unless and until the claimants executed the proposed new charter parties.

TAXATION-EXEMPTION

PORATION

MENT.

PUBLIC IMPROVEMENT

-That property exempt from taxation is still liable for assessments for public improvements has been decided by a long line of cases, the latest of which is Yates v. City of Milwaukee (Wis.), 66 N. W. Rep. 248, wherein the following is from the opinion of the court:

In the case of Hale v. City of Kenosha, 29 Wis. 605, in considering the distinction between taxes and assessments, it was said that "assessments, as distinguished from other kinds of taxation, are those special and local impositions upon property in the immediate vicinity of municipal improvements, such as grading and paving streets, improving harbors or navigable rivers within the limits of the municipality, and the like, which are necessary to pay for the improvements, and are laid with reference to the special benefit which the property is supposed to have derived from the expenditure;" and the language of Bronson, J., in Sharp v. Speir, 4 Hill, 76, that "our laws make a plain distinction between taxes which are burdens or charges imposed upon persons or property to raise money for public purposes, and assessments for city or village improvements, which are not regarded as burdens, but as an equivalent or compensation for the enhanced value which the property of the person assessed has derived from the improvement," after citing the previous cases in this State on the subject, was declared to be "peculiarly applicable to our system of taxation and assessment." As such assessments are laid with reference to the special benefit which the owner of the property is supposed to have derived from the improvement, it is manifestly just that, to the extent which his property has been benefited, it should be charged with the cost of the improvement, and it would be inequitable to exempt it from such an assessment. No presumption, therefore, of an intention to exempt such property from assessment, can arise from the use of language which does not clearly show that the legislature intended such exemption, and to charge the special benefit thus derived by a private owner upon the funds raised by general taxation. While assessments are said, in strictness, to be made under the taxing

power, they are "so far separated and distinguished from general taxation as to have obtained a distinct name and that name 'assessments.' As such, they have been known and described for a number of years in the older States, in their contracts, laws, and constitutions. A clear distinction between it and other taxation was established." Weeks v. City of Milwaukee, 10 Wis. 243, 244. A familiar illustration of the popular understanding is found in the language used in leases, and in those before us, where general taxes, when so intended, are named simply as "taxes;" and when assessments are intended, the words "special taxes" or "assessment" are employed to express such intent. Legislative exemptions of property from taxation are to be strictly construed. This rule is uniyersal. Cooley, Tax'n, 54; Weston v. Supervisors, 44 Wis. 256. In pursuance of this principle, it has been generally held that a law exempting property from "taxation" does not exempt from assessment for street improvements; that the terms "taxes" and "assessments" are not synonymous, and that the latter is not included in the former. Lima v. Cemetery Ass'n, 5 Am. & Eng. Corp. Cas. 547, and note, where the cases on the subject are collected; Winona & St. P. Ry. Co. v. O City of Watertown (S. D.), 44 N. W. Rep. 1072; City of Sioux City v. Independent Dist. of Sioux City (Iowa), 7 N. W. Rep. 488; 25 Am. & Eng. Enc. Law, 160, and numerous cases cited in note 2; Worcester Agricultural Soc. v. Mayor, etc., of Worcester, 116 Mass. 189, 191; Bridgeport v. New York & N. H. R. Co., 36 Conn. 255; McClean Co. v. City of Bloomington, 106 Ill. 209; Adams Co. v. City of Quincy, 130 Ill. 566, 22 N. E. Rep. 624; Zable v. Orphans' Home, 92 Ky. 89, 17 S. W. Rep. 212; State v. Mills, 34 N. J. Law, 177; Buffalo City Cemetery v. City of Buffalo, 46 N. Y. 506; Roosevelt Hospital v. Mayor, etc., 84 N. Y. 108; Railway Co. v. Decatur, 147 U. S. 190, 13 Sup. Ct. Rep. 293.

FRAUDULENT CONVEYANCE PARTIAL ILLEGALITY OF CONSIDERATION.-The Supreme Judicial Court of Massachusetts decides, in Traders' Nat. Bank v. Steere, 43 N. E. Rep. 187, that the fact that a transfer by a debtor in payment of a just debt was also in consideration that the transferee should not prosecute the former for a crime, does not render the transfer subject to attack at the instance of creditors as fraudulent. The following is from the opinion of the court:

The conveyance of property by a contract which is void as being against public policy in a particular which has no reference to creditors does not neces sarily give creditors a right to pursue the property after the contract has been fully executed. Such a contract may or may not be fraudulent as against creditors. If it is, they may set it aside; if it is not, they cannot. We may assume, in accordance with the decisions in Weeks v. Hill, 38 N. H. 199, and in Clark v. Gibson, 12 N. H. 386, that if an insolvent per son appropriates a considerable portion of his prop erty for his own benefit in a way forbidden by law, such an appropriation is ipso facto a fraud upon his creditors. Money taken by an insolvent person from his estate, and paid to compound a felony, is dis posed of fraudulently as against creditors, and may be treated by them as still applicable to the payment of their debts. But the payment of one or more