delivered the opinion of the court.

The only question in this cause, is as to the instruction of the court on the question of fraud. The court assumed the power of instructing the jury that the transaction out of which the controversy arose was fraudulent. This was erroneous for the reasons given in the opinion of *416Kuykendall, to the use of Middleton & Perry vs. McDonald and Vineyard decided at this term.

The other judges concurring, the judgment will be reversed and the cause remanded.