tion shall not issue within six months from the granting of letters testamentary or of administration, without leave of the county court or judge thereof. Section 276 provides that if execution be issued after the death of the judgment debtor, and be against real or personal property, it shall require the sheriff to satisfy the judgment out of any property in the hands of the debtor's personal representatives, heirs, devisees, legatees, tenants of real property, or trustees as such. Held, that a judgment creditor is entitled to have an execution issued on a judgment rendered against a deceased debtor to enforce such judgment against the property of the debtor, or for the delivery of real or personal property.-Bower v. Holladay, (Or.) 22 P. 553. 2. A decree foreclosing a street assessment is a judgment, under the provisions of Code Civil Proc. Cal. § 681, authorizing the issuance of an execution thereon within five years after the judgment is entered.-Dorland v. Hanson, (Cal.) 22 P. 552. Sale. 3. Code Civil Proc. Cal. § 681, requiring execution on a judgment to issue within five years after judgment is entered, applies also to an order of sale.-Dorland v. Hanson, (Cal.) 22 P. 552. 4. A sale of land under execution on a judgment against persons having no title, though in possession, cannot pass the title.-Pekin Mining & Milling Co. v. Kennedy, (Cal.) 22 P. 679. 5. At a constable's sale, March 22, 1884, one who volunteered his assistance to the justice to write out the certificate of sale inserted his own name as purchaser, and the certificate was signed by the constable and recorded. Afterwards the mistake was discovered, and a new certificate was issued to the real purchaser, which recited the sale as taking place July 12th, and which was filed for record July 19th, and the constable executed a deed to the assignee of this certificate. Held, that no title passed to the assignee as against the persons having the right to redeem from the sale, who in the mean time, without notice of the second certificate, had paid the necessary amount, and received a certificate of redemption from the holder of the first certificate.-Pekin Mining & Milling Co. v. Kennedy, (Cal.) 22 P. 679. 6. Gen. St. Colo. § 1835, subjecting real estate to execution sale, declares that the term "real estate" includes "all interest of the defendant, or any person to his use, held or claimed by virtue of any deed, bond, covenant, or otherwise for a conveyance, or as a mortgagor. Held, that a vendor, who by contract subsequently releases his trust deed for the purchase price, and merely reserves a lien, has only a chose in action, and no interest in the land which can be made the subject of an execution sale.-Fallon v. Worthington, (Colo.) 22 P. 960. Distribution of proceeds. 7. A sale of goods to satisfy plaintiff's execution netted $180. A few days afterwards, the goods having been bought for the judgment debtor, the same goods were levied on to satisfy a junior lien, and netted $2,402.50. This amount was insufficient to satisfy the junior lien. Plaintiff was in business but a few doors from the business place of the judgment debtor, and after the first sale the purchaser, who claimed individual ownership, but who really purchased for the debtor, continued the business at the same place. Plaintiff, however, did nothing to secure a new levy. The junior creditors bore all the expense of the second levy and sale, indemnified the sheriff, and contested a replevin suit by the purchaser at the former sale. There was no charge of bad faith or negligence on the part of the sheriff at the first sale, but the amount realized at the second sale represented the real value of the goods. Held, that plaintiff was not entitled to have his claim satisfied from the proceeds of the second sale.-Joslin v. Spangler, (Colo.) 22 P. 804. Vacating. 8. Where an order authorizing the issuance of an execution is made by one department of the court below, an order vacating the same may be made by another department of the same court.Dorland v. Hanson, (Cal.) 22 P. 552. 9. Where the court below has, without author ity, made an order authorizing the issuance of an execution, the same court may, on motion, vacate and set aside said execution or a sale made under it, though the order is appealable.-Dorland v. Hanson, (Cal.) 22 P. 552. EXECUTORS AND ADMINIS- See, also, Descent and Distribution; Wills. Appointment and removal. an executor or administrator, within one month 1. Hill's Code Or. § 1112, makes it the duty of from the date of his appointment, or such further time as the court or judge may allow, to file with the clerk an inventory, verified by his own oath, of all the real and personal property of the deceased which shall come to his possession or knowledge; and section 1114 makes it his duty, before the inventory is filed, to cause the property to be appraised at its true cash value by three disinterested persons, and for a failure to discharge these duties he is liable to removal.-In re Holladay's Estate, (Or.) 22 P. 750. 2. County courts are vested with a very large discretionary power over the conduct of executors and administrators, and its exercise will not be interfered with on appeal, unless plainly required by some principle of law.-In re Holladay's Estate, (Or.) 22 P. 750. * 3. Code Civil Proc. Cal. § 1354, provides that "where a person absent from the state is named executor, ** if there is no other executor, letters of administration with the will annexed must be granted;" and § 1388 empowers the court to examine "on oath the party applying, and any other persons, "as to the value of the property, to determine the penalty of the bond required of an executor. Held, that a non-resident, named as executor in a will, may apply for and receive letters testamentary, and it is unnecessary that he be actually in the state when the order for issuance of the letters is made.-In re Brown's Estate, (Cal.) 22 P. 233. 4. The fact that an administration has not been completed, though 14 years have elapsed since the appointment of the administrator, is prima facie evidence of neglect of duty on his part, and, in the absence of satisfactory explana tion of the delay, supports a finding that the administrator has wrongfully and willfully neglected the estate, and has unnecessarily, willfully, and wrongfully prolonged its administration, to its great detriment, and justifies his removal, and the revocation of his letters of administration.-In re Moore's Estate, (Cal.) 22 P. 653. Duties. 5. The duties of an executor or administra tor are active, and not passive. He cannot be permitted to neglect to do those things which are plainly required at his hands by law or the order of the court, and, when complaint is made of such neglect, excuse himself by alleging that such delay or omission was for the benefit of the estate. In re Holladay's Estate, (Or.) 22 P. 750. 6. An executor is not bound by the duties of his office to pay bankers, brokers, and other per sons a bonus above legal interest, to secure a loan of money to redeem property, belonging to the estate of his testator which has been soid under the decree of a court having jurisdiction to order the same, nor is he bound to pledge his own securities or use his own credit secure such loan.-In re Holladay's Estate,, (2 P. 750. Claims against estate. 7. A claim against he estate of a decedent, presented to the personal representative, for services rendered, which gives the number of days' service in each month, the total for each year, and the grand total for all, with the wages per day, money from another, sends him a letter expressing 9. Though an administrator is not authorized 10. Items of administration expenses less than 11. An administrator is entitled to his expenses 12. Neither expenses incurred by the adminis- 13. An administrator should be allowed counsel 14. Commissions should not be allowed the ad- 15. If notice to the heirs and persons interested the 16. Where a patent to land is issued to the heirs 22 P. 570. 2. In a prosecution for an attempt to extort contains the word "another" between "employ" FACTORS AND BROKERS. 1. After agreeing to sell land belonging to Lien. a certain net price, the excess to be divided equally Liability of brokers. He 3. Plaintiff agreed to purchase of defendants, 4. Plaintiff can take nothing by the fact that was verbal. The receipt of the $300 by the owners 5. The owners of land cannot escape paying FALSE PRETENSES. See, also, Deceit; Fraud; Fraudulent Convey- ances. Information. 1. An information charging that defendant 2. A firm of which the defendant was a mem- regulations as are not in conflict with general laws. 5. Prisoners unlawfully put to work at hard FIXTURES. As between mortgagor and mortgagee, see Mort- What constitutes. Under Civil Code Cal. §§ 658, 660, providing FORCIBLE ENTRY AND DE- ber kept about 390 steers during the summer, and Collection. FINES. Jurisdiction. Stay of proceedings. 2. Under Code Civil Proc. Cal. § 1176, provid- 1. Comp. St. Mont. div. 1, § 318, requires the Hard labor. 2. Pen. Code Cal. § 1446, provides that a judg- 3. Const. Cal. art. 11, § 11, provides that any Foreclosure. Former Jeopardy. See Criminal Law, 6-11. FRAUD. See, also, Deceit; False Pretenses; Fraudulent At elections, see Elections and Voters, 9. Defendant, a broker, sold to plaintiff, for P., balance of the property which he had bought from B., and which was worth $600. At the time of the sale to plaintiff, lot 5 was worth $2,400. The usual commission for a sale of that amount was $100. The court having found that he occupied a position of trust towards plaintiff, decreed that defendant pay plaintiff $2,400 on the conveyance to him by her of lot 5. Held error, as it did not appear that she had been deceived as to the quantity or quality of the land, and, besides, defendant had never agreed to purchase lot 5, nor had he received the $2,400. Baker v. Brown, (Cal.) 22 P. 879. FRAUDS, STATUTE OF. Parol lease, see Landlord and Tenant, 3. Promise to answer for debt of another. 1. In an action for goods sold and delivered, and money advanced to defendant on his alleged promise to pay for them, where the evidence shows that the goods were delivered and the money advanced to another, and so charged by plaintiffs, the defendant cannot be held as an original contractor, he being, at most, but a guarantor.-Har ris v. Frank, (Cal.) 22 P. 856. 2. The verbal guaranty of defendant, of the payment for goods furnished to another, was within the statute of frauds; Civil Code Cal. $ 1624, providing that a contract to answer for the debt of another is void, where the same, or some note or memorandum thereof, is not in writing, and signed by the party, unless within certain exceptions named in section 2794, which are not applicable to defendant's promise.-Harris v. Frank, (Cal.) 22 P. 856. Agreements relating to land. 3. A parol agreement to convey land, and full payment of the purchase price, will not operate to pass the title thereto, where no possession of the land is taken under the agreement, and no memoranda thereof is in writing.-Goddard v. Donaha, (Kan.) 22 P. 708. 4. Plaintiff, an old man, owned a lot of ground, and entered into a verbal agreement with defend ant that if the latter would erect a house on the ground, pay half the taxes, etc., and take care of plaintiff, he might occupy said house during the natural life of plaintiff. Defendant complied with the terms of the agreement. Held, that part performance of the contract by defendant took the verbal agreement out of the statute of frauds, and defendant acquired a life-estate in the property.Manning v. Franklin, (Cal.) 22 P. 550. 5. In an action for breach of contract to sell land, on failure to prove a written agreement, evidence to show an oral agreement was properly excluded, as such agreement, if made, was void under the statute of frauds.-Wristen v. Bowles, (Cal.) 22 P. 1136. Pleading. 6. Where plaintiff relied upon a verbal contract of guaranty, but the declaration contained only the common counts, a contract of guaranty not being pleaded, defendant was not required to plead the statute of frauds, but had a right to avail himself of it under his general denial.- Harris v. Frank, (Cal.) 22 P. 856. FRAUDULENT CONVEY ANCES. What constitutes. 1. Where the grantor of a trust-deed and the beneficiary agree that the deed is not to be recorded as provided by law, that it may not affect the financial standing of the grantor, and such fraudulent agreement is carried out by concealing the existence of the trust-deed, and also by represent ing the credit of the grantor as good, when the parties must have known it was at best doubtful, whereby the grantor is enabled to obtain credit from those who are misled by such representations, the evidence of fraud is conclusive.-StockGrowers' Bank v. Newton, (Colo.) 22 P. 444. 2. It appeared that plaintiff had recovered a chased some land, which she caused to be conveyed, judgment against defendant L.; that L. had purafter the judgment, to one G.; that G., some months thereafter, conveyed the property to defendant B., who was a non-resident and the sister of L., for the same price, though valuable improvements had been made thereon; that L. remained in possession of the property the whole time, was financially embarrassed, and had no other property out of which a judgment could be made. Held, that the evidence supported a finding that the conveyances were fraudulent.-La Fitte v. Rups, (Colo.) 22 P. 309. 3. An answer seeking to avoid a transfer to plaintiff, as in fraud of creditors, alleged that the purpose was to defraud, etc., but failed to state any facts showing fraud, except that the sale was not accompanied by immediate delivery, nor followed by actual or continued change of possession, and in this the finding was against the answer. It did not allege that no consideration passed, or that there was no other property of the debtor with which to satisfy his debts, and the only allegation tending to show knowledge on the part of plaintiff that the conveyance was to defraud creditors was The finding was that the conveyance was made by that plaintiff knew that his grantor was insolvent. both parties thereto to defraud creditors of the grantor, and that the sale involved all the property of the debtor. Held, that the answer and findings were insufficient to show a fraudulent conveyance.-Albertoli v. Branham, (Cal.) 22 P. 404. Judgment by confession. 4. In an action to set aside a judgment by concreditor and debtor were brothers, and that the latfession for fraud it appeared that the judgment and was unable to pay his debts. To secure his ter owed the former, and was also owing plaintiff, brother he had signed a confession of judgment some time before the judgment in question, but it had been agreed between the brothers that the judgment should not be entered of record lest it might injure the debtor's credit, and that he should keep his brother's attorney informed of his affairs, so that any movement by the other creditors to seize the property might be anticipated. With this understanding the debtor borrowed from his brother $1,500 more. He also obtained credit from plaintiff by representing that his brother had no security, and would not press him. On the day the debtor confessed judgment the last time plainsubsequent to the levy of an execution to satisfy tiff sued in attachment, but the writ was levied the confessed judgment. Held, that a finding by the court that the debtor was insolvent at the time judgment was confessed, and that the judgment was void as against plaintiff, would not be disturbed.-Walton v. First Nat. Bank, (Colo.) 22 P. 440. Gift. 5. A husband, when perfectly solvent, made a gift of personal property to his wife, who duly accepted it. After delivery the husband at all times represented that the property was the separate property of the wife, and whenever it was loaned to others it was by the direction and consent of the wife, and not of the husband. The latter, however, continued to use the property as before, and there was nothing in its use by the wife that was inconsistent with ownership by the husband, or from which the public could de termine that the title had passed to the wife. The husband afterwards left the state, and the property was for a while in litigation, and in the hands of the sheriff, but otherwise the wife had the exclusive possession and use thereof. Held, that there was an "immediate delivery, followed by an actual and continued change of possession, within Civil Code Cal. § 3440, which makes every other transfer of personal property made by a person having possession and control fraudulent as to his creditors, and the successors in interest of such creditors, etc.-Morgan v. Ball, (Cal.) 22 P. 331. 7. In an action to set aside a conveyance on the 8. Where it appears that the written confes- 9. The payment of taxes on land by one in pos- 10. In replevin brought against an attaching 11. G. was carrying on business in the name of state that the game was "played for money, checks, 3. One witness cannot describe the game and 4. The question whether the game played was Gifts. Issuance. HABEAS CORPUS. Gen. St. Colo. c. 49, § 20, provides that the Prescription. of about twice the value of B.'s debt, and other Indictment. GAMING. 1. An indictment for a violation of Pen. Code sary to enjoying and maintaining the same, subject 2. Under Act Cong. 1866, (Rev. St. U. S. § 3. Pol. Code Cal. 1873, $ 2619, provides that * |