FENCES.

See Animals, 14.

FILING PAPERS.

FILING OF A PAPER, WHAT CONSTITUTES.-When a pa
per is deposited with the clerk of a court for the purpose of making
it a part of the record in a cause, it is filed, though the clerk, being
doubtful as to his power to then file it, enters upon it the fact and
time of its receipt, but does not put his file marks thereon until the
next day. (Hanover Fire Ins. Co. v. Shrader, 25.)

FIXTURES.

MORTGAGES-FIXTURES.-If a mortgagor agrees with a
mortgagee to place machinery to a certain amount on the mortgaged
premises, and such machinery, when placed thereon, is attached
thereto, it becomes a fixture subject to the lien of the mortgage, al-
though some part of it is placed in the building after the mortgage
was executed. (Muehling v. Muehling, 674.)

FORCIBLE ENTRY AND DETAINER.

1. FORCIBLE ENTRY, WHAT IS.-An entry upon premises in
defiance of the occupant, with such a display of force as to reason-
ably deter him from maintaining his possession, is a forcible entry.
(Lewis v. State, 255.)

2. FORCIBLE ENTRY, WHAT IS NOT.-A mere invasion of
the premises of another during his absence, accompanied by such
violence only as was incident to effecting an entry into an unoccu
pled dwelling-house thereon is but a naked trespass, not indictable
as a forcible entry. There can be no forcible entry in the absence
of acts naturally tending to excite a breach of the peace. (Lewis v.
State, 255.)

3. UNDER AN INDICTMENT CHARGING BOTH forcible entry
and a forcible detainer, it is essential to sustain a conviction that
both offenses be proved. (Lewis v. State, 255.)

See Ejectment.

FORFEITURE.

See Insurance, 16, 17, 20, 23; Vendor and Purchaser, 4.

FORGERY.

FORGERY DOES NOT ADMIT OF RATIFICATION.-
Hence, if a mortgage upon which an action is founded is a forgery,
there can be no ratification of it, and it is not binding on the mort
gagor. (Henry Christian B. & L. Assn. v. Walton, 636.)

FRANCHISES.
See Mandamus, 4.
FRAUD.

1. FRAUD.-AN ENGAGEMENT OR PROMISE to be fulfilled
In the future is not a representation, but the making thereof, naving
no intention at the time of performing it and made for the purpose
of deceiving, constitutes fraud for which a contract may be avoided.
(Ansley v. Bank of Piedmont, 122.)

2. FRAUD.-MERE EXPRESSION OF OPINION, though acted
upon, does not constitute a fraud or give rise to a cause of action.
And, generally, represehtations as to prospective values are mere
expressions of opinion. (Ansley v. Bank of Piedmont, 122.)
See Agency, 1, 8, 10; Contracts, 13. 15; Judgment, 10; Pleading, 9;
Sales, 6; Vendor and Purchaser, 3.

AM. ST. REP., VOL LIX.-61

FRAUDULENT CONVEYANCES.

1. GIFT OR VOLUNTARY TRANSFER, WHEN NOT VALID
AS AGAINST CREDITORS.-A release of indebtedness executed by
a creditor of his debtor without consideration is not valid as against
the creditors of the former. (Bement v. Ohio Valley etc. Co., 445.)

2. VOLUNTARY TRANSFERS, WHO MAY ATTACK.-A holder
of a covenant of warranty in a conveyance of land must be regarded
as a creditor of the warrantor from the date of the deed, though it
is not until several years afterward that there is a breach of the cov
enant. Hence, such covenantee may attack a voluntary conveyance
made by his covenantor before the breach of the covenant. (Bement
v. Ohio Valley etc. Co., 445.)

See Homestead, 6, 8; Insurance, 32.

GAME LAWS.

GAME LAWS-FISHING WITH "TROT LINE."-Under a
statute prohibiting the placing across any body of water a trot line
so as to prevent the "free passage of fish up, down, or through" such
water, but allowing fish to be taken with hook and line, taking fish
with a trot line is not absolutely prohibited. The prohibition is
against placing such line in a way to obstruct the free passage of
fish. (Collins v. Bankers' Accident Ins. Co., 367.)

GARNISHMENT.
See Attachment.

GIFT.

GIFT, WHEN REVOKED AND CANCELED.-If a father as-
signs certain indebtedness to his son without any valuable considera-
tion, and, as the result of the subsequent compromise of an action
between the debtor and the father, lands are conveyed to the son,
who, on his part, agrees to pay such indebtedness to the father, this
shows that the former transaction was no longer treated by the par-
ties thereto as a gift, and that the son is liable to the father for the
amount agreed to be paid to him. (Bement v. Ohio Valley etc. Co.,
445.)

See Fraudulent Conveyances, 1; Limitation of Actions, 2.

GUARDIAN AND WARD.

See Courts of Probate, 1, 2.

HEAD OF FAMILY.

See Execution, 4.

HOMESTEAD

1. HOMESTEAD, CLAIMING TWO DWELLINGS.-If a dec-
laration of homestead is filed on property containing two dwellings,
one occupied by the claimant and the other rented to a tenant, the
latter cannot be held as part of the homestead. (In re Ligget, 190.)
2. HOMESTEAD ON WHICH THE CLAIMANT HAS NEVER
RESIDED.-If a husband and wife own adjacent tracts of land,
which are cultivated as one farm, he may claim and hold his tract
as a homestead, though the house in which he and his family reside
is not upon his land, but upon hers. (Mason v. Columbia Finance
etc. Co., 451.)

3. HOMESTEAD, INTEREST OR TITLE WHICH MAY BE
SUBJECT TO.-Real property held under a contract of purchase, the
ven lor retaining the legal title, may be the subject of a homestead
clair on the part of the purchaser and his wife. (Lessell v. Good-
man, 435.)

4. HOMESTEAD IN PARTNERSHIP PROPERTY.-The wife of a partner is not entitled, as against another partner, to a homestead in its real property under a statute declaring that each member of a partnership may require its property to be applied to the discharge of its debts, and is a lien upon the shares of the other partners for this purpose and for the payment of any general balance due to him. (Brady v. Krueger, 771.)

5. INSOLVENCY PROCEEDINGS-SETTING APART HOMESTEAD.-On an application of an insolvent debtor to have property set aside as a homestead, the court is not precluded by the fact that there is no written opposition to the application from inquiring whether the whole of the property is exempt as a homestead and refusing to set aside such part as is rented out to a tenant and has never been used as a home. (In re Ligget, 190.)

6. HOMESTEAD-DEFRAUDING CREDITORS.-A conveyance of a homestead by a husband to his wife cannot be a fraud upon his creditors, because it is not liable to their demand. (Wells v. Anderson, 409.)

7. HOMESTEAD.-THE FACT THAT AN INSOLVENT PAYS A MORTGAGE on his homestead out of his assets does not entitle his creditors to subject such homestead, to the extent of such payment, to the satisfaction of their demands, where it appears that the moneys for which the mortgage was given were used in his business and not to improve the homestead or to discharge aby pre-existing lien thereon. (Wells v. Anderson, 409.)

8. HOMESTEAD — FRAUDULENT ALIENATION-LIEN OF JUDGMENT.—If a judgment debtor and his wife convey their homestead for the purpose of having the grantee transfer it to the wife, the grantee merely holds the title in trust for her, and a deed from him to her does not burden the property with the judgment, though it was entered against the trustee as well as the homestead owner; and, in a suit to subject the land to the payment of the judgment, it is immaterial what motive influenced the homestead owner to convey to his wife, as there can be no fraudulent alienation of homestead property. (Roberts v. Robinson, 567.)

9. HOMESTEAD-LIEN OF JUDGMENT.-A judgment is not a lien upon a homestead. (Roberts v. Robinson, 567.)

10. HOMESTEAD.-AN ACKNOWLEDGMENT BY A HUSBAND that he has forfeited his contract to purchase land held as a homestead, in which acknowledgment his wife did not join, is void.. (Lessell v. Goodman, 435.)

11. HOMESTEAD.-A DECREE OF DIVORCE WHICH DESTROYS THE FAMILY destroys the homestead right, and if it pur ports to set aside certain property to the wife as a homestead, there being no children of the marriage, her interest is subject to execution for subsequently contracted debts. (Bahn v. Starcke, 40.) See Husband and Wife, 6; Marriage and Divorce, 3.

HOMICIDE.

1. MURDER-KILLING BY MISTAKE.-The fact that a person otherwise guilty of murder in the first degree killed another than the person intended does not in any degree lessen his guilt. (Commonwealth v. Eisenhower, 670.)

2. MURDER-CAUSE OF DEATH.-A person otherwise guilty of murder cannot escape by showing that the death was the result of an accident occurring in an operation made necessary by his felonious act. (Commonwealth v. Eisenhower, 670.)

3. HOMICIDE-UNCONTROLLABLE IMPULSE.-An impulse to kill is not irresistible where it is not controlled so long as the

weapon of death is directed against another, but instantly ceases
when the slayer turns it against himself. (Genz v. State, 619.)

4. HOMICIDE-MURDER BY PARAMOUR.-If a man seeking
illicit sexual intercourse with another's wife is interfered with by
the husband, whom he kills during the course of such interference
with a deadly weapon, with which he has armed himself with in-
tent to kill if necessary to save his own life upon being interfered
with, he is guilty of murder in the first degree. (Dabney v. State,
92.)

5. HOMICIDE-ADULTERY AS PROVOCATION.-Illicit sex-
ual intercourse with the wife of another is such a wrong, and so ob-
viously calculated to bring on a difficulty with the husband, that the
law recognizes it as a provocation sufficient to reduce the killing of
the adulteress and her paramour by the husband, upon detecting
them in the act, to manslaughter. (Dabney v. State, 92.)

6. MURDER, PASSION AROUSED BY DISPUTE AS TO
PROPERTY RIGHTS.-Where there is an honest difference of opin-
ion between parties in respect to their interest in property, the fact
that one of them proceeds, against the protest of the other, to assert
his rights according to his understanding of them, cannot constitute
a sufficient provocation for killing him, nor can it be deemed to ex-
cite an irresistible outburst of passion on the part of the slayer, so
as to reduce the offense to voluntary manslaughter. (Sellers v.
State, 253.)

7. CRIMINAL LAW-INSANITY AS A DEFENSE-HOMI-
CIDE.-Insanity is not available as a defense to an indictment for
murder, if the accused, at the time of the killing, was capable of
distinguishing between right and wrong, with respect to that act,
and was conscious that the act was one which he ought not to have
done, although he might have been impelled by an irresistible im-
pulse to do it (Genz v. State, 619.)

8. MURDER.-A PERSON ASSAILED IN HIS OWN HOUSE
OR PREMISES can repel force by force, and is not obliged to re-
treat, but may pursue his adversary until he has secured himself
from danger, and if, in a conflict between them, he happens to kill,
the killing is justifiable. (People v. Lewis, 167.)

9. MURDER SELF-DEFENSE. - NO RETREAT IS RE-
QUIRED of one who is not the aggressor. A true man who is with
out fault is not obliged to flee from an assault of one who, by vio-
lence and surprise, maliciously seeks to take away his life, or to do
hini enormous bodily harm. (People v. Lewis, 167.)

10.

HOMICIDE-MURDER-SELF-DEFENSE.-One who enters
upon the commission of a wrongful act, and, contemplating that an-
other may interfere with his enterprise, arms himself with a deadly
weapon with intent to take the life of that other should it become
necessary to save his own in the course of such interference, and
who in fact does take the life of the interferer, in pursuance of such
intent, is guilty of murder in the first degree. (Dabney v. State,
02.)

11. HOMICIDE-SELF-DEFENSE WHEN UNLAWFUL.-One
who provokes a difficulty and by his own wrong contributes to a
situation out of which arises a necessity to take the life of another
to preserve his own, cannot invoke the doctrine of self-defense to
justify a homicide committed under such circumstances. Illicit sex-
ual intercourse with the wife of the party killed is such a wrong as
takes away from the slayer the right of self-defense. (Dabney v.
State, 92.)

12. CRIMINAL LAW.-EVIDENCE that the day after a murder
the witness met the accused, and that he looked frightened, is ad-
missible as a statement of a collective fact. (Thornton v. State, 97.)

18. HOMICIDE EVIDENCE.-If, on a trial for murder, a mem
orandum book and pencil found at the scene of the killing are shown
to have been the property of the accused, they are admissible in
evidence as tending to connect the accused with the killing as its
guilty agent. The weight to be given such evidence is for the jury
to determine. (Thornton v. State, 97.)

-

14. MURDER — EVIDENCE OF GOOD CHARACTER - IN-
STRUCTIONS.-A request to charge, in a murder trial, that "the
jury may look at the good character of the defendant with the other
evidence in the case, and this good character may of itself be suf-
ficient to generate a reasonable doubt of defendant's guilt, is prop-
erly refused as giving undue weight to the fact of defendant's good
character. (Dabney v. State, 92.)

15. MURDER-EVIDENCE OF FORMER DIFFICULTY.—If, on
a trial for murder, the evidence shows that the deceased was killed
by the accused upon being discovered in illicit sexual relations with
the wife of the former, evidence that a short time prior to the
homicide, or at the time thereof, the deceased attempted to kill his
wife is immaterial, irrelevant, and inadmissible. (Dabney v. State,
92.)

1. MURDER-EVIDENCE OF POWDER BURNS.-If, on a trial
for murder, the evidence shows that the deceased was killed by be-
ing shot as he entered the door of a certain house, a witness, upon
being asked, after describing the scene of the killing, "if he saw
any powder burns upon the door of said house," may testify as to
his familiarity with powder burns, and, that, in his opinion, there
were powder burns upon the door of such house. (Dabney v. State,
92.)

17. CRIMINAL LAW-OPINION EVIDENCE-IDENTITY OF
PERSON.-A witness in a murder case, who has testified that he
knew both the deceased and the accused, and had met them a great
many times, is competent to testify that two men passed him on the
night of the killing, that he noticed them carefully, and, although,
he could not state positively who they were, "in his best opinion”
they were the deceased and the accused. (Thornton v. State, 97.)
18. HOMICIDE-INSTRUCTIONS.-A request to charge the jury
in a murder case that "the defendant is presumed to be innocent
until his guilt is established, and the evidence sufficient to convict
should be so clear and convincing as to lead your minds to the con-
clusion that the accused cannot be guiltless," is erroneous and prop-
erly refused. (Thornton v. State, 97.)

19. HOMICIDE-INSTRUCTIONS AS TO CIRCUMSTANTIAL
EVIDENCE.-A request to charge the jury in a murder trial that
"circumstantial evidence should be just as clear and convincing as
where the facts are testified to by eye-witnesses, and in this case
should be so clear and convincing as to lead your minds to the con-
clusion that the defendant is guilty beyond a reasonable doubt,"
is erroneous and properly refused. (Thornton v. State, 97.)

20. HOMICIDE INSTRUCTIONS - EVIDENCE OF GOOD
CHARACTER.-A request to charge on a murder trial that "the de-
fendant has the right to offer evidence of his previous good charac-
ter. not only where a doubt exists on the other proof, but even to
generate a doubt as to his guilt," is erroneous and properly re-
fused. (Thornton v. State, 97.)

21. MURDER.-AN INSTRUCTION to the jury that if, from the
evidence, they believe that, without any physical act or demonstra-
tion on the part of the decedent, sufficient to warrant him as a rea-
sonable man in the belief that he was in great bodily danger, he
fired the fatal shot at, and killed, the decedent, such killing was not