another. Commerce can not flourish in the midst of such embarrassments. No carrier of passengers can conduct his business with satisfaction to himself, or comfort to those employing him, if on one side of a state line his passengers, both white and colored, must be permitted to occupy the same cabin and on the other kept separate. Uniformity in the regulations by which he is to be governed from one end to the other of his route is a necessity in his business, and to secure it, Congress, which is untrammeled by state lines, has been invested with the exclusive legislative power of determining what such regulations shall be. If this statute can be enforced against those engaged in inter-state commerce, it may be as well against those engaged in foreign, and the master of a ship clearing from New Orleans to Liverpool, having passengers on board, would be compelled to carry all, white and colored, in the same cabin during his passage down the river, or be subject to an action for damages, exemplary as well as actual,' by any one who felt himself aggrieved because he had been excluded on account of his color." Mr. Justice Clifford filed a concurring opinion, which covers thirteen printed pages.

EFFECT OF FRAUDULENT CONVEYANCES UPON THE RIGHT OF HOMESTEAD, II. Against the general current of authority, referred to in the last number, the Supreme Court of Minnesota has held that where a husband and wife conveyed property, occupied as a homestead, to a third person, and he in turn conveyed it to the wife, and a referee found. that the conveyance was void as to creditors, a decree subjecting it to the judgment of a creditor, and denying to the debtor and his children (the wife having died), the right of homestead therein, was not erroneous.1

The reasoning of the court appears inconclusive, and would not be quoted here but for the fact that we have set out, at considerable length, the reasoning of those courts which have held the opposite view. A distinction

(1) Piper v. Johnston, 12 Minn. 60.

(2) Wilson, Ch. J., said: "The report of the referee settles the fact that the conveyances attacked in the case were made with the intent to defraud the plaintiff, who was, at the time, a creditor of John Johnston, and it is clear on principle, and well established by very numerous cases decided under the common law, and under statutes substantially the same as ours, that such conveyances are void as against the plaintiff, and valid against persons standing in the position of John

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may, however, be found between this and most of the foregoing cases, in the fact that when these conveyances were made, the law of Minnesota, like the law of some other states,3 made a judgment a lien upon all the debtor's property situated within the county, including (according to judicial interpretation) his homestead; so that, although it remained in abeyance while the homestead occupancy continued, yet, this once ended, whether by separation of the family, removal or alienation, it immediately became active, and could be enforced by execution against the property. "Here," said the court, was a valuable right secured by the law to the Johnston, and those claiming under him. See May v. Bibean, 2 Minn. 291, and cases there cited; 1 Am. Lea Cas. (4th Ed.) 45, and cases cited. How, then, can the appellant have a homestead right in the premises in question, as against the plaintiff, or against any person? He is estopped to deny the validity of said deeds, which, as against every person but those whom he intended to defraud thereby, are valid. A person is not allowed to defeat his contract or deed, by alleging his own turpitude. These deeds conveyed out of the appellant the entire estate, legal and equitable. He is no longer (wner, and the homestead law secures a homestead only to the owner. If any estate or interest in this land is exempt from execution, it must be in favor of the owners, now the heirs, of Ellen S. Johnston. The contest is essentially between them and plaintiff. If there is any surplus after paying plaintiff's claim, it must be paid to the grantee, though a fraudulent grantee. Busch v. Elliott, 3 Ind. 100. The grantees of the appellant set up no claim to a homestead right, nor could they maintain such claim. But it is urged that, as tenant by the courtesy, the appellant is "owner" of the lots, and therefore entitled to the benefits secured by the homestead law. Many objections might be urged to this position, but one is conclusive. His claim as tenant by the courtesy is under the deeds, which the law declared void as against the plaintiff. His claim to the estate is by virtue of the seizin of his wife, but the law declares that the wife acquired no estate under these deeds as against the plaintiff, and she having acquired no estate, he, of course, can have no valid claim as tenant by the courtesy. This seems too clear to admit of argument or doubt. It is urged that the debtor can not practice a fraud upon his creditors by any disposition which he may make of property exempt from execution. As applied to this case, there is no force in the argument. It is not shown, nor do the allegations of the pleadings or the report of the referee justify us in presuming that the property thus conveyed was, as a whole, exempt as a homestead. Admitting that the appellant had a right to hold part of the property as a homestead, or that, when sold on execution, he was entitled to part of the proceeds, this certainly gave him no right to convey it as an entirety, without consideration, and for the purpose of defrauding his creditors. But even if all the property conveyed was exempt, it would not affect this case."

(3) See, for instance, Hoyt v. Howe, 3 Wis. 752; State Bank v. Carson, 4 Neb. 498; Allen v. Cook, 26 Barb. 374; Norriss v. Kidd, 28 Ark. 485; Jackson v. Allen, 30 Ark. 110.

(4) Folsom v. Carli, 5 Minn. 333; Tillotson v,Millard, 7 Minn. 513.

plaintiff, which the appellant fraudulently attempted to deprive him of. These deeds were, therefore, not only fraudulent, but prejudical to the plaintiff, and they came within both the letter and spirit of the law which declares fraudulent conveyances void as against persons hindered, delayed or defrauded." This reasoning, however, would seem more plausible if the fraudulent conveyance had attempted to vest the legal title in a stranger to the family; but in this case it merely passed through such a person, and finally rested in the wife, a member of the family 5 for whose benefit the homestead exemption was, no doubt, secured the occupation of the family of the premises as a homestead continuing all the while unbroken; and it would seem to be too great a refinement to suppose that this momentary seizin by the intermediate grantee could have had the effect of vivifying the dormant judgment lien. The two conveyances should evidently be viewed as one transaction, and, taken together, they did not amount to an alienation of the homestead. The title still remained in the wife; and a wife's title will support a homestead exemption for the benefit of the family, as well as the husband's.7

What is here said is equally applicable to a late decision of the Supreme Court of Arkansas, upon facts somewhat dissimilar to those in the Minnesota case, and where the same conclusion was reached. But previously to this decision the same court held, after a thorough examination of the question, that the effect of the Arkansas statute of homestead was not to create a new estate, "but to protect the occupant of the land in the use and occupancy of the land so set apart as a homestead during the time of such occupancy; but if abandoned by removal or death, leaving neither wife nor children to succeed to his rights, the rights of the judgment-creditor would be fully restored." The application of this principle to the facts of the case first stated was easy. An insolvent debtor had conveyed his homestead to a third person in (5) The Minnesota statute, however, does not confine the homestead exemption to a "householder," or "head of a family," but extends it to "any resident of this state." Stat, at Large of Minn., p. 630, § 165.

(6) Compare on this point, Lassen v. Vance, 8 Cal.271. (7) Crane v. Waggoner, 33 Ind. 83; Orr v. Shraft, 22 Mich. 260; Torerville v. Piersen, 39 Ill. 446.

(8) Chambers v. Sallie, 29 Ark. 407.

(9) Ibid.; Norris v. Kidd, 28 Ark. 485.

trust for his wife, and afterwards died. Still later the wife died. The facts, as stated in the opinion of the court, do not show that there remained any children associated together as a family, in whom the immunity could continue, and it is to be presumed that there were none. The court held that the conveyance was void as to creditors, that no homestead right therein existed, and that the land was subject to administration.10

The Supreme Court of Illinois, though it has gone to great lengths, in many particulars, in upholding the homestead exemption, has held that a voluntary conveyance, made by an insolvent debtor to a third per

Be

son for the debtor's wife and children, of property occupied by them as a homestead, is fraudulent and void, as to creditors, and defeats the homestead right. The reasoning of the court, on this point, is as follows: "The wife, while the husband is living, can not claim the benefit of the statute exempting homesteads from forced sale against the husband. It is for him, while living, to claim, if he chooses, the benefit of the statute, and, if he does not, the wife can not enforce the exemption. sides, the property having been conveyed to hinder and defraud creditors, the conveyance was good as against the husband, the grantor. He, therefore, could not claim the exemption of the statute in regard to that property." This decision, supported by fallacious, reasoning, professedly based upon an adjudication not at all in point, contrary in spirit to nearly all the subsequent decisions of the same court, if not already overruled,12 undoubtedly will be whenever the question is again presented.

The Supreme Court of Pennsylvania, by a somewhat narrow line of construction, regretted, in later cases by the judges themselves, has done much to deprive the debtor of the full benefits of the meagre homestead and chat(10) Chambers v. Sallie, 29 Ark. 407.

(11) Getzler v. Saroni, 18 Ill. 511, 526, opinion by Skinner, J. In support of this view the learned judge cited Cassell v. Williams, 12 Ill. 387, which goes no further than to hold that "if a party fraudulently transfer his [personal] property for the purpose of avoiding the payment of his debts, or even sell it for a valuable consideration, after it has become subject to an execution against him, he can not afterwards claim the property as his and recover from the officer selling it three times its value, upon the ground that it was exempt from execution against him." This case is substantially overruled by Vaughan v. Thompson, 17 Ill. 78.

(12) Cipperly v. Rhodes, 53 Ill. 346; Vaughan v. Thompson, supra.

tel exemption allowed him in that state by the act of 1849. That court seems to have entirely overlooked or ignored the apparent intention of the legislature to protect from pauperism the wife and children, as well as the husband, and to prevent the family from becoming a public charge; since it has uniformly held that the right is lost by the laches of the husband in failing to assert it at the proper time1 or by his fraud in selling or concealing his chattels, or in denying the ownership thereof.15 In accordance with this general spirit, the court has held that a debtor, who has conveyed real estate to his wife, is not entitled to claim the benefit of the exemption out of the proceeds thereof when seized and sold by the sheriff. It must be acknowledged that, if the language in which this rule is declared leaves out of view the benevolent purposes of the statute, it exhibits, on the part of its author, a sense of justice such as becomes a judge.16

(14) Bowyer's Appeal, 21 Penn. St. 210, though possibly missapplied.

(15) Freeman v. Smith, 30 Penn. St. 264; Diffenderfer v. Fisher, 3 Grant's Cases, 30; Gilleland v. Rhodes, 34 Penn. St.; Strouse v. Beecher, 38 Penn. St. 190; Emerson v. Smith, 51 Penn. St. 90; Smith v. Emerson, 43 Penn. St. 456.

(16) Huey's Appeal, 29 Penn. St. 219. Woodward, J., said: "There is no principle of law so consonant with reason, or better supported by authority, than that a conveyance, which is fraudulent as to creditors, binds, nevertheless, the parties to it. Through that 'cloud of authority' of which the counsel speak, this principle shines perpetually, and it guides us to the conclusion that the appellant is here without merits. Having caused his house and lot to be conveyed to his wife, for the purpose of hindering and delaying his creditors, denying his ownership as long as denial would serve to keep them off, he chops round now when they have raised $314 26 out of the property by a a sheriff's sale of it, and claims $300 of the proceeds under our exemption statute. It would be a perversion of that humane law to apply it to such a case. As to his creditors, the fraudulent deed was void, and he remained the owner of the property, but the deed concluded him for all other purposes. The statute was not made as an instrument of fraud, to delay and hinder creditors, but to secure to honest debtors, from the wreck of their fortunes, a subsistence until they can do something for themselves and family. But if a debtor may first convey away his property in fraud of creditors, and then, when it is seized or sold, come in and take the proceeds, the statute is worse than the fraudulent deed, because more efficacious to cheat the creditor."

THE great equity suit in England of the Singer Manufacturing Company against Newton Wilson, involving the plaintiff's right to the exclusive use of its tradename, has just been decided, on appeal, by the House of Lords, in favor of the Singer Company-costs decreed against defendant. The decision in the court below is reported in 3 Cent. L. J. 706.

ERROR to Knox county.

BREESE, J., delivered the opinion of the court:

This is an indictment preferred by the grand jury of Knox county at the June term, 1876, against John Brown, for forgery. The charge was, that in the county of Knox, on the 1st day of February, 1876, defendant unlawfully, feloniously, and wilfully, contriving to injure, damage and defraud one Eliza Penn, did then and there unlawfully, feloniously, knowingly and falsely forge and counterfeit a certain instrument in writing purporting to be a public record, viz: a decree of divorce pretended to be granted in Marion County Circuit Court, of the State of Indiana; which said false, forged and counterfeited instrument of writing is as follows:

STATE OF INDIANA, Marion County.

SS.

In Marion County Circuit Court, to January Term, A. D., 1876.

And now this cause coming on for a final hearing in said court, and the evidence being heard, and it was proven that John W. Brown was married to Mary J. Shum, now Mary J. Brown, was guilty of repeated abuse and desertion for the space of two years previous to the filing of the bill for divorce in this cause; and it appearing by the evidence that the said parties have one child, named Clara Brown, by said marriage, aged about three years. It also appearing by the evidence that the said Mary J. Brown was guilty of repeated abuse, and further that she, Mary J. Brown, deserted and left her husband on or about the 15th day of January, A. D., 1874, without cause or provocation; now, therefore, it is ordered and decreed by the Court, that the said John W. Brown and Mary J. Brown are henceforth and forever divorced, and that the bonds of matrimony heretofore existing between them are forever dissolved, and that the said Mary J. Brown retain the care and custody of said child, Clara Brown, till she becomes of the age of fourteen years, and that said John W. Brown pay the costs of this case to the officers and witnesses.

C. H. MAFFIT,

Judge Circuit Court, Marion Co., Ind.

The indictment properly concludes. A motion was made to quash the indictment, which was denied, and the defendant, pleading not guilty, was put upon his trial before a jury, who found him guilty as charged, and fixed his punishment at two (2) years confinement in the penitentiary.

A motion for a new trial was made and denied, and a like disposition was made of defendant's motion in arrest of judgment, and judgment rendered on the verdict.

To reverse this judgment, defendant has obtained a writ of error and brought the record to this court. Various errors are assigned, but we have considered but one, which strikes at the foundation of the prosecution; it is this: The instrument of writing set out in the indictment does not on its face purport to be an authenticated copy of a record, and no indictment could be founded upon it. The statute

Rev. Stat. cap. 38 § 105, is in these words: Every person who shall falsely make, alter, forge or counterfeit any record or other authentic matter of a public nature ** with intent, etc. Every person so offending shall be deemed guilty of perjury and shall be punished. The section embraces almost every conceivable instrument of writing known to the law, and in common use in the various transactions of life, and the whole purport of it leads to the conclusion that the instrument alleged to be forged must be such an instrument which, if genuine, would be effective. A glance at this alleged forged record will satisfy any one that it has few if any indications of a record of a court. It could deceive no one. Even the young woman whom it is alleged it was designed to deceive and defraud, testified on her re-cross-examination, as follows: "At the time he showed the divorce I glanced at it, and said it was no divorce, because there was no seal or stamp on it. He says that it is legal." Again she stated, when the divorce decree was shown to her, she looked at it and said she could get up just as good a one. Again, her brother Charles testified that all he knew about it was what his sister told him. She said it was not a legal divorce, as it la 1 no stamp on it.

Nobody could be deceived by such an instrument of writing who was not quite willing to be deceived. The paper does not purport to be a copy of any record, nor has it the semblance of one, save in a few particulars. The worst that can be said of the instrument is that it is a fictitious decree, and for making such no penalty is provided by the statute, whilst there is a severe penalty provided by section 107 against any one who shall make, alter or publish with intention to defraud any other person, or with like intention shall attempt to pass, utter or publish, or shall have in his possession with like intent, any bill, note or check or other instrument of writing for the payment of money or property, etc., knowing the same to be fictitious, shall be imprisoned in the penitentiary,

etc.

The instrument in question is at best but a fictitious decree of a court of another state, got up with the intent to deceive no doubt, but against which no penalty seems to be provided by law.

The instrument not being or purporting to be a

record, no indictment for forging it can be founded on it. And the finding and judgment were erroneous. The judgment is reversed, and the prisoner will be discharged.

NATIONAL BANKS-USURY.

NATIONAL BANK OF MADISON v. DAVIS.

United States Circuit Court, District of Indiana.
December, 1877.

Before Hon. THOMAS DRUMMOND, Circuit Judge, and
Hon. WALTER Q. GRESHAM, District Judge.

IF a national bank discount a note at a usurious rateof interest, paying the borrower the proceeds less the interest, it can recover only the face of the note less the entire interest received. But if such note be renewed, the borrower paying the usurious interest out of his pocket, in advance, the defendant may recoup or recover in an independent action, double the amount of the entire interest paid at the renewal. If, instead of paying the usurious interest at each renewal, it be added to the principal and included in the renewal notes, the bank can only recover the amount originally paid to the borrower, i. e., the amount of the last of the renewal notes less all interest included in it.

C. E. Walker and C. L. Halstein, for plaintiff; Herod & Winter, for defendant. GRESHAM, J.:

The plaintiff, on the 19th of May, 1869, for the defendant, Jacob Davis, discounted his note for $3,000 at four months, with two indorsers, at the rate of 12 per cent. per annum, paying Davis the proceeds less $128.50, the interest reserved. There were divers renewals of this note, each renewal being for the full amount of the principal, Davisactually paying the interest in advance, the bank reserving nothing out of the proceeds of the discount. The indorsers were accommodation indorsers, and there were different indorsers upon different renewals.

In 1873 Davis paid $700 on the principal, thus reducing his loan to $2,300, for which sum four different renewal notes were given. On December 9, 1873, Davis paid on one of these renewals 12 per cent. interest in advance. This was the last usurious interest paid. From that date the plaintiff received only legal interest at the rate of 10 per cent. per annum. On April 1st, 1875, Davis renewed his loan by giving his two notes for like amounts, maturing at different dates, and the note sued on was given in renewal of one of these notes.

Section 30 of the National Bank Act, approved June 30, 1864, reads as follows:.

"Section 30. And be it further enacted, that every association may take, receive, reserve, and charge on any loan or discount made, or upon any note, bill of exchange, or other evidence of debt, interest at the rate allowed by the laws of the state or territory where the bank is located, and no more; except that where, by the laws of any state, a different rate is limited for banks of issue, organized under state laws, the rate so limited shall be allowed for associations organized in any such state under this act. And when no rate is fixed by the laws of the state

or territory, the bank may take, receive, reserve, or charge a rate not exceeding seven per centum, and such interest may be taken in advance, reckoning the days for which the note, bill or other evidence of debt has to run.

"And the knowingly taking, receiving, reserving, or charging a rate of interest greater than aforesaid, shall be held and adjudged a forfeiture of the entire interest which the note, bill or other evidence of debt carries with it, or which has been agreed to be paid thereon. And in case a greater rate of interest has been paid, the person or persons paying the same, or their legal representatives, may recover back in any action of debt twice the amount of the interest thus paid from the association taking or receiving the same; provided, that such action is commenced within two years from the time the usurious transaction occurred. But the purchase, discount, or sale of a bona fide bill of exchange, payable at any other place than the place of such purchase, discount or sale, at not more than the current rate of exchange for sight drafts, in addition to the interest, shall not be considered as taking or receiving a greater rate of interest."

If a national bank discount a note at a usurious rate of interest, paying the borrower the proceeds, less the interest, and suit be brought to recover the loan, and the borrower plead the usury, the bank will recover the face of the note less the entire interest taken out, received or reserved, and no more. It will thus collect the sum of money it actually paid out, being punisned for receiving interest in excess of the legal rate by forfeiting all interest. But if the note thus discounted be renewed for the same amount, the borrower paying usurious interest out of his pocket in advance, and suit be brought on the renewed note, the defendant may recoup double the amount of the entire interest actually paid on renewal, or in an independent action of debt he may recover from the bank double the amount of the entire interest thus paid.

In either case the punishment of the bank is the same. In the latter case the bank forfeits double the amount of the interest paid, and yet recovers the amount it actually paid out, for it will be remembered the note sued on includes the amount of interest originally reserved. True, if the note be renewed in the same manner more than once, and the borrower be allowed to recoup, or in an independent action recover double the amount of usurious interest paid, the bank will lose part of the principal as well as all of the interest. But forfeiture of double the entire interest paid is barred after the lapse of two years. If instead of paying the usurious interest at each renewal of the loan, the same be added to the principal and included in the renewal notes, the bank, if the usury be pleaded, will recover the amount it originally paid to the borrower; that is to say, it will recover the amount of the last of the renewal series sued on, less all the interest included in it.

Usury forfeited the entire loan or debt under the banking act of February 25, 1863. This,

Congress thought, was too severe, and the act of 1864, with the exception already noticed, limits the forfeiture to the interest only.

In the case of Farmers', etc., National Bank v. Dearing 1 Otto, 29, the court say: "In the act of 1864 the forfeiture of the debt is omitted, and there is substituted for it the forfeiture of the interest stipulated for, if it had only been reserved, and the recovery of twice the amount when the interest had been actually paid."

The only forfeitures visited upon national banks, when they stipulate for or receive illegal interest, are those found in the banking act. They are not subject to any penalties or forfeitures contained in state statutes. 1 Otto, 2.

It is a familiar principle, that forfeitures are never favored.

English Court of Appeal, December 7, 1877.

A person who sends animals to a public market, knowing that they are infected with a contagious disease, does not impliedly make a representation that they are not, so far as he knows, infected with a contagious disease, and is not liable in an action for false representation at the suit of a person who has purchased such animals, and consequently suffered loss. Judgment of the Queen's Bench Division (reported 25 W. R. 585), reversed.

This was an appeal from a decision of the Queen's Bench Division, reported 25 W. R. 585.

The action was for breach of warranty and false representation, arising out of a sale by the defendant to the plaintiff of certain pigs under the following circumstances:

The defendant sent to a public market for sale some pigs which were, in fact, infected with a contagious disease, viz., typhoid fever. As appears hereafter from the judgment, in the opinion of the court there was evidence to go to the jury that the defendant knew when he sent the pigs to market that they were so infected. The defendant made no express representation as to the condition of the pigs, and the conditions of sale stipulated that no warranty should be given by the vendor, and that the lots were to be taken with all faults. The plaintiff bought the pigs and placed them with other pigs of his own. Many of the pigs bought of the defendant died, and they communicated the disease to the other pigs of the plaintiff. To recover the losses so incurred, the plaintiff brought this action. The jury found a verdict for the plaintiff, and judgment was entered for him, leave being reserved to the defend