Opinion by

The proof in this, case does not sufficiently sustain the charge of fraud. It may be that Jesse Cobb had misled Smith as to his solvency, but it does not appear that it was done for the purpose of inducing him to vouch to Estill as to his ability to pay for the mules. It may also be true that Cobb knew he was insolvent when he bought the mules, but it does not necessarily follow that he .did not intend to pay for them. He may have believed that he would be able, finally to extricate himself from: his difficulties and pa,y all his debts. The fact that he kept the mules on his place, in Madison County a few miles from where Estill lived for over four months, shows that it was not his object to buy them on credit, and then convert them, into money, and refuse to pay for them'. He seems to have given up everything to his creditors when he made the deed of assignment for their benefit.

Judgment affirmed.