Fraud — Presumption — Pleading. — Fraud is never presumed, and whenever it constitutes an element of a cause of action or of a defense which! is of an affirmative nature, and invoked as conferring a right against the opposite party, it must he alleged.

Id. — Fraudulent Transfer — Intent to Defraud Creditors — Question of Fact. — The intent to defraud creditors is a question of fact, and not of law, and it is necessary for one who would avail himself of this fact to set aside a completed transfer of property by a debtor, to aver it in his pleading as one of the elements of his cause of action or defense.

Id. — Husband and Wife — Transfer of Money — Certificate of Deposit— Pleading —Fraud upon Creditors — Agency — Trust.— In an action by a wife for damages sustained by the failure of the defendant to return, upon demand, a certificate of deposit issued to her order and left with the defendant for safe-keeping, the defendant, who has not specially pleaded, in his answer, as a defense, that the money represented by the certificate of deposit had been transferred to the wife by her husband with intent to defraud his creditors, and that the certificate, being for that reason fraudulent and void, was rightfully attached at the instance of the husband’s creditors, cannot prove such defense under am averment that the money represented by the certificate belonged to the husband, and that the wife deposited the certificate with, the defendant as the agent and trustee of her husband.

Id— Proceeds of Sale of Homestead — Voluntary Transfer to Wife. — The voluntary transfer by a husband to his wife of the proceeds derived from the sale of a homestead is not per se fraudulent and void, as a transfer made with intent to defraud creditors of the husband.

Bailment—Deposit — Duty of Bailee. — A bailee who receives property as a mere depositary for safe-keeping is bound to deliver it to the bailor upon demand, unless he has a lien upon it, or is prevented from doing so by the real owner or by the act of the law, and has given the notice required by sections 1822 and 1825 of the Civil Code.

Id.—Jus Tbrtii — Burden of Proof.—A bailee can assert a jus tertii in an action by the bailor only when he defends on such title, and by the authority of such third person. When the bailor has obtained the property by some fraud practiced upon the true owner, the bailee can, upon the authority of such true owner, or when he has been forbidden by him to make delivery of the property, defend upon such true owner’s title; but he always assumes such defense at his peril, and takes upon himself the burden of showing the right to retain the property under such instructions.

Id.—Deposit by Wife —Title of Husband — Garnishment—Defense — Rebuttal — Gift by Husband. — Where a bailee claims the right to retain a certificate of deposit, left with him by the bailor, upon the ground that the certificate was never the property of the bailor, but was held by her for her husband as his agent, and that a garnishment therefor against the husband has been served upon him, he must prove that the property belongs to the husband, in order to claim such right; and proof that the money represented by the certificate was given by the husband to the wife is sufficient to rebut the right of the bailee to retain the certificate.