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witness actually present in court. On the to the witness instead of the marshal, it can other hand, such is the large territo- be served by any person; the service to be rial extent of the Circuit Courts of the verified by affidavit. That is a reasonable United States-extending in this district
district practice, and, if there is any doubt about it three hundred miles
that to arising under the provision of the statute resay a party may absolutely summon all the quiring that all process directed to the marwitnesses he pleases, and if successful tax the shal shall be served by the marshal, I am not entire mileage against the other party, would desirous of changing it.
But I can not see often work injustice. The true practice is, that any hardship or evil can arise from susthat in order to prevent hardships and oppres- staining the practice of allowing a subpæna to sion, the clerk will not tax attendance, where be served by anybody; such service to be witnesses actually appear, for more than one properly authenticated. hundred miles, unless upon an order of court. The court having heard the case, knowing the EFFECT OF FRAUDULENT CONVEYANCES issues and observing the course of the trial, is UPON THE RIGHT OF HOMESTEAD. able to determine whether it is reasonable In a former issue we cited some and proper to allow such fees. It depends showing the effect of fraudulent conveyances very much whether they were called for the
upon the right of dower.
Do the same purpose of establishing facts which could be principles apply also to the right of homewell proved by written documents, or to es- stead? Most of the cases answer this questablish a point in the case which could just as tion, in the affirmative, and hold that a conveywell have been established by depositions. If ance set aside for fraud at the suit of the hussuch is the fact, there is no good reason for band's creditors, does not estop the grantor, or allowing any mileage beyond the one hun- his wife, from claiming homestead in the dred miles. In this case the issue was one as premises thus conveyed.1 to the genuineness of a signature. Under these Two general reasons for this rule may be circumstances, as the witnesses properly at- deduced from the cases : 1. That the hometended, and as there were no more of them stead privilege is created for the benefit of the than necessary, the actual mileage and per wife and children, as well as for that of the diem is allowed. But allowing this, the fees husband and father; and, therefore, it is not for taking dispositions not used are rejected. right that the former should be prejudiced by The practice that has prevailed in the Fed- the wrongful act of the latter.2 eral Court here for more than twenty years, 2. That the conveyance being void as to credaccording to Treat, J., is: That when a wit- itors, it stands as to them as though it had ness is brought into court from a greater dis- never been made; if it had not been made, tance than one hundred miles, there will be the debtor, or his wife, could have asserted taxed against the adverse party, if defeated, the right of homestead in the premises against mileage for only one hundred miles, unless
and they can not assume the inconfrom the exceptional character of the case, sistent positions of asserting the nullity of the the court awards mileage for a greater dis
(1) Cox v. Wilder, 2 Dillon C.C. 45; 8. C., 7 N. B. R. tance. The successful party, producing the 241; Smith v. Kehr, 2 Dillon C.C. 50, 63; Danforth witness, must pay the costs of extra mileage
Beattie, 43 Vt. 138; Kuevan v. Specker, 11 Bush. 1;
Crummen v. Bennett, 68 N. C. 494; Sears v. Hanks, 14 when not otherwise ordered by the court, to Ohio St. 298; Pennington v. Seal, 49 Miss. 518, 527; be taxed against him. When a witness is Edmonson v. Meacham, 50 Miss. 34; Castle v. Palmer,
6 Allen, 401; McFarland v. Goodman, 6 Bissell, 111; produced on the stand by a party taking his
Smith v. Rumsey, 33 Mich. 183, 191 (overruling dicdeposition, no fees for taking the deposition tum in Herschfeldt v. George, 6 Mich. 456); Dreutzler
v. Bell, 11 Wis. 114; Murphy v. Crouch, 24 Wis. 365; should be allowed.
Pike v. Miles, 23 Wis. 164; Vogler y. Montgomery, 54
Piper v. Johnston, 12 Minn. 60; Getzler v. Saroni, 18 In the same case, a question was raised as Ill. 511; Chambers v. Sallie, 29 Ark. 407; Huey's Ap
peal, 29 Penn. St. 219; McClurg v. Johnson, Sup. Court to the right to tax witness fees where the
Tenn., Nash. Com. & Leg. Rep., Oct. 11, 1876; 8. C., 2 subpæna had not been served by the mar- Law & Eq. Rep. 78. shal. Dillon, J., said: The practice in this
(2) “He can not maintain it to be both good and
bad. The law allows no such paradox.” McFarland v. court is, that as a subpena is merely directed
Goodman, 6 Bissell, 117, Hopkins, J.
the interest which the creditor has in the property by virtue of his lien is a derivative interest, proceeding from the debtor and dependent upon his title. Hence the creditor can not acquire a right under the debtor's title, and at the same time impeach that title. He can not sell, under his execution, the debtor's title, and at the same time deny the debtor's rights of homestead on the ground that the latter has no title.5
conveyance and claiming a right under it. In other words, a fraudulent conveyance does not enlarge the rights of creditors, but leaves them to enforce the rights they would have had if no such conveyance had been made.* Expressed in still
(3) Cox v. Wilder, 3 Dillon C.C. 49. In this case Dillon, J., said: “Since the exemption is allowed only to the head of a family, it is obvious that the provision is not made solely on account of the husband, but has in view also the wife and children—the family.
* The assignee does not and can not claim under the deed, but in hostility to it; and when it is avoided, and the title placed in the assignee, I do not think (in view of the purpose of the exemption) that the husband is estopped, as against the assignee, to claim the right to the homestead, or the value, to the extent given by the statute. This view does not make the estate any less than it the fraudulent conveyance had not been made, while the opposite view gives the creditors a profit out of the attempted fraud, at the expense of the family, for whose benefit the exemption is mainly, if not wholly, provided. If the law gave to a single man the right to this exemption, it would accord with the natural desire to punish fraud, to visit a penalty upon him; but to denounce a forfeiture of the homestead, where there is a family, subverts the policy on which the exemption is provided and allowed.". The same view was taken in an ably reasoned case in the U. S. Circuit Court for the Eastern District of Wisconsin, in which the opinion was delivered by the late District Judge Hopkins. McFarland v. Goodman, 6 Bissell, 111. That able judge held that, although a conveyance of the homestead, executed by a bankrupt to his wife, has been set aside at the suit of the assignee in bankruptcy, the homestead rights remain, and the assignee holds subject to them. The Supreme Court of Missouri, in Vogler v. Montgomery, 54 Mo. 577, have followed and approved Cox v. Wilder. In that case it appeared that the debtor had, prior to the levy, conveyed his title to the premises to a third person, and upon this ground it was claimed that he had forfeited the protection of the homestead law. “If this conveyance was in good faith," said Napton, J., "and valid, then it is obvious that an execution and a sale under it would convey nothing; but if it was fraudulent,
then the title was in Vogler, and the homestead law exempted it from execution."
(4) Cox. v. Wilder, 1 Dillon C. C. 49; Kuevan v. Specker, 11 Bush (Ky.) 3; Crummen v. Bennett, 68 N. C. 494; McFarland v. Goodman, 6 Bissell, 111. “These appellees,” said Pryor, J., in the Kentucky case, asking now to subject the property to the payment of their debts, upon the ground that the conveyance to the son was fraudulent and void as to creditors; and if made liable by the chancellor, it must be for the reason that it is still the property of Theodore Kuevan, the debtor. If his property (himself and his wife being still in possession), the creditors will not be allowed to say that we can subject it to satisfy our demands because he is still the owner, and at the same time deny his right to a homestead for the reason that he is not the owner. If the property is made liable for Theodore Kuevan's debts for the reason that the conveyance is fraudulent aud void, it must be sold subject to the exemptions made by law for the benefit of the debtor. The appellees lose nothing by the recognition of this claim to the homestead. If no conveyance had been made they could only have made the property liable in the same way. A fraudulent conveyance does not enlarge the rights of creditors, but only leaves them to enforce such rights as if no conveyance had been made."
(5) Sears v. Hanks, 14 Ohio St. 298, opinion by Scott, J. The judgment in this case is so well reasoned, and has been so often appealed to in support of the rule, that we feel justified in quoting from it at length: “On behalf of the plaintiffs, it is claimed that Hanks and wife are not entitled to the benefits of the statute exempting homesteads, because of their prior convey. ance of the premises to their children, whereby they divested themselves of all interest in the property conveyed. And that, as this conveyance is valid as between the parties, and only void as against creditors, to allow the homestead claim, in this case, would be to permit one person to claim a homestead in the property of others. We do not perceive the force of this argument, as coming from these plaintiffs. If it be sound, Hanks, the debtor, has a very narrow standing in court upon the question of ownership. For, it is clear that, as against these plaintiffs, the decree of the court hav. ing declared his conveyance to his children fraudulent and void, he is no longer permitted to question the right of his creditors to proceed against the property as his, and to sell it for the satisfaction of their claims against him; and, at the same time, that as his conveyance is valid as between grantors and grantees, he is estopped from claiming as agaiust these same plaintiffs, who are asserting the rights of creditors, that he has any interest whatever in the property. And yet, though estoppels are mutual, the plaintiffs claim a right, notwithstanding the conveyance, to regard the property as still belonging to their debtor, and, at the same time, disregarding the decree which they have asked and obtained, to insist that their debtor has no interest whatever in the premises. The debtor is estopped equally from claiming and from disclaiming, while the creditor may do either, and each in turn, as his interest may dictate. Such a position can hardly be maintained. The rights of the plaintiffs in this action are only those which belong to creditors seeking to set aside a voluntary conveyance of their debtor, made in fraud of their rights, and to enforce their judgment liens against the property so conveyed. Their claim is not under or through the fraudulent conveyance, but adverse to it; and when, at their suit, it has been set aside, and declared wholly void as against them, they can not be allowed, as creditors, to set up this void conveyance, against which they are claiming, for the purpose of enlarging their rights or remedies against their debtor, or for the purpose of estopping him from the assertion of the rights which he would otherwise have as against them. As between creditor and debtor, the deed is simply void, and can not therefore affect the rights of either. A judgment creditor's lien is only upon the property of his debtor; and the purchaser at sale on execution takes, in general, only the debtor's title. If the debtor has no title or interest in the property levied on, there is nothing for the creditor to sell; and it is not competent for the creditor, while selling the alleged title of his debtor, to deny his right to a homestead, on the ground that he has no interest in the property about to be sold. If he has an interest in the
If the premises are actually occupied by the then, no legal restraint upon the debtor against debtor as a homestead, it can make no dif- conveying or selling such property, except in ference, so far as the creditor is concerned, those states where the wife is required to join by what sort of title the debtor occupies. By | in the conveyance of the homestead, the attempting the sale the creditor affirms that the motives with which such transfers are made are debtor has a saleable interest; and the law of no concern whatever to the creditor. If he means that that interest should. not be taken procures a conveyance to be set aside as fraudaway, and the debtor disturbed in his posses- ulent, he takes what is vendible under his sion by sale under judicial process.
execution; the title to the rest is a question to If a conveyance of land is procured by an be disputed between the debtor and his grantee. insolvent debtor to his wife and children, it will "Since creditors could enforce no process be treated in equity as having been made to against it, could no more pursue it for their himself; and if, with his family he occupies it debts against him (the grantor) than they as a homestead, it will be protected as such; could pursue for the same purpose the absosince a title which, if the property were not
lute property of the Government, the law will homestead, could be subjected by creditors, is not allow it to be said that the transfer of it, sufficient to support the homestead right.? if any were made, operated to defraud
Besides, the fraud does not consist in creditors. When the law declares that a conveying the homestead; for the creditor debtor's disposal of his property with could not have reached that with his exe- intent to defraud his creditors shall cution had the debtor retained it. The be voidable at the instance of his credfraud consists in conveying the other part of itors, and at the same time declares that spethe land, that the creditor can reach by his cific property of the debtor shall be exempt execution. But as to the homestead he has as against his creditors' adverse claims, the no concern. That matter rests between the provisions are in pari materia, and must be fraudulent grantor and his grantee.8
construed together, and the latter provision This appears to be the most satisfactory
must be held to except this exempt property ground upon which the rule has been placed. from the operation of the former provisIt resolves itself into this : that as to exempt
ion. Certainly it would be very inconsistent property there are, within the meaning of the to say that a debtor's disposal of property, and statute of frauds, no creditors.9 Statutes which property, in so far as the creditor and his creating exemptions were not designed to im- claims are concerned, may be said to have no prison the debtor in his homestead, 10 nor to existance at all, is a fraud upon the creditor. fetter the transfer of chattels. 11 There being
The law excludes the homestead
from all remedies of creditors in all courts, and homestead property, which the creditor can sell, he
the power of the creditor to take it against the has interest enough to secure his homestead from sale. The validity of the fraudulent conveyance, as between
will of the owner is absolutely subverted. There the parties to it, is no concern of the creditors, when is no question left as to whether there is or it has been set aside as to him. All he can ask is, that, as against him, it shall confer no rights upon anyone.
should be a remedy somewhere to subject the Were these plaintiffs judgment creditors of the fraud. homestead. The law has closed the door ulent grantees, and levying their execution as such, the against all discussion about it.”:12 case would be entirely different; and it might then well be said in response to the present claim of Hanks, that
“No creditor can be, in legal contemplation, one person can not have a homestead in the property defrauded by a mere conveyance, made by his of another.”
debtor, of any of his property, which such (6) Pennington v. Seal, 49 Miss., 527. Opinion by Simrall, J.
creditor has no right by law to appropriate, or (7) Edmonson v. Meacham, 50 Miss., 40, in sub
even to touch, by any civil process. This stance. Opinion by Simrall, J. Dreutzler v. Bell, 11 principle is perfectly plain."13 “A conveyance Wis., 114.
of homestead, by the husband to the wife, can (8) Crummen v. Bennett. 68 N. C. 498; Smith v. Rumsey, 33 Mich. 191; Dreutzler v. Bell, 11 Wis. 118;
not be held fraudulent as to creditors, for the Pike v. Miles, 23 Mo. 168; Legro v. Lord, 10 Maine, 165. (9) Smith v. Allen, 39 Miss. 469, 475; Duvall v.
So declared by statute, in Alabama, repealing a statute Rollins, 71 N. C. 221; Smith v. Rumsey, 33 Mich. 191.
declaring otherwise. Cook v. Baine, 37 Ala. 350;
Vaughan v. Thompson, 17 Ill. 78. (10) Morris v. Ward, 5 Kan. 247. (11) Shaw v. Davis, 55 Barb. 389; Schlitz v. Schatz, 2
(12) Smith v. Rumsey, 33 Mich. 191, 192, Graves, J. Bissell, 248; Paxton y. Freeman, 6. J.J. Marshall, 234. (13) Legro v. Lord, 10 Maine, 165, Mellen, C. J.
reason that, being exempt, it was no more be- NUISANCE-FAILURE OF A RAILROAD TO yond their reach than before."14
GIVE SIGNALS AT CROSSINGS. Application of the foregoing principles will
L. & N. R. R. CO. V. COMMONWEALTH. readily suggest themselves; but it may be useful to refer to the facts of one
Court of Appeals of Kentucky. cases.
[To appear in 13th Bush.] Where a husband made a voluntary convey- HON, WM. LINDSAY, Chief Justice.
W. S. PRYOR, ance of property, including the homestead, to
M. H. COFER, Associate Justices. the wife, and afterwards abandoned her, fled
J. M. ELLIOTT, the country, and was adjudged a bankrupt, IT IS THE DUTY OF A RAILROAD COMPANY to cause the conveyance was held void as to creditors,
signals to be given, where the safety of travelers on in
tersecting roads demands that a warning should be but good as between the parties to it, and given of approaching trains; and a habitual failure to therefore effectual to convey the husband's give such signals, or warnings, is an offense against the right of homestead to the wife; and, the wife
public-an indictable nuisance, remaining in actual occupancy of the prem- APPEAL from Marion Circuit Court. ises, was entitled, as against the assignee in R. H. Rountree, for appellant; bankruptcy, to have the homestead exemption “ A public offense, in the meaning of this set apart to her. “ To that extent,” said Dil
Code, is any act or omission for which the law has lon, J., “ the court could, if necessary, give "All public offenses may be prosecuted by indict
prescribed a punishment." Criminal Code, sec. 1. efficacy to the deed of trust in her favor. If
ment, except public officers." Criminal Code, it be necessary that the exemption be applied sec. 6. An indictment may be set aside when it for in the name of the husband, the court
was not found and prosecuted as required by
this Code." Sub-sec. 3 of sec. 159. The indictwould even allow her to apply in his name, so
ment in this case was insufficient, and ought to as to prevent the amount from going into the
have been quashed or set aside on the demurrer of hands of the assignee, who has no claim or appellant, because it does not state facts which equity whatever to it. 159
constitute an offense for which the law of this Under a statute providing that no convey
state has prescribed a punishment.
There is no statute requiring a railroad company ance of the homestead “ is valid in law, un
to carry on its trains a bell, or to ring a bell, or to less the wife shall join in such conveyance,”:16 carry or blow a steam-whistle at highway crossit has been held that a conveyance of the ings or other places, or requiring its trains to homestead by the husband to third move slow or fast at highway crossings—there is
no statutory provision on this subject, and, thereperson, and by such third person to the
fore, if any law is violated by the facts charged in wife, was valid as against the husband's the indictment, it must be the common law (1 creditors; since the conveyance being Kent, 470); and the common law does not require by the husband alone, it had
a railroad company to carry or ring a bell or blow upon homestead estate.
Such a conveyance
a steam whistle at a highway crossing. See An
gell and Ames on Corporations, sec. 391; 2 Redwould not estop the husband from afterwards
field on Railways, p. 368, chap. 30, sec. 225, subasserting the right of homestead, and certainly sec. 3, 369, and sub-sec, 6; Wood on Law of Nuinot the wife. 17
sance, p. 2, and note, and pp. 788, 790, 791.
Thomas E. Moss, attorney-general, for appellee, (14) Pike v. Miles, 23 Wis. 168, Paine, J., Dreutzler
cited in argument 3 Blackstone, p. 216; People v. Bell, 11 Wis. 118, Cole, J.
v. Sands, 1 Johns.; Commonwealth v. Rand., 6 (15) Smith v. Kehr, 2 Dillon C.C. 50, 63-opinion by
Rand; Wharton, sec. 2370; Wood on Law of Dillon, Circuit J. affirming Treat, District J.
Nuisance, secs. 747 to 754, and cases cited. (16) Mass. Stat. 1857, ch. 298, $ 6.
COFER, J., delivered the opinion of the court: 17) Castle v. Palmer, 6 Allen, 401. Compare Mal- Although the appellant's charter authorizes it to lory v. Horan, 12 Abbott Pr. (N. S.) 289, where a sim
operate its road by running trains thereon, and ilar question arose as to dower.
does not limit the speed at which they may be (To be continued.)
run, nor require it to ring a bell or blow a whistle at the crossings of public roads, it does not neces
sarily follow that to omit to give one of these We are pleased to note that the committee appointed
signals, or to take other precautions to avoid injurto examine candidates for admission to the bar are insisting on a high standard, and do not hesitate to re
ing persons traveling on intersecting highways, is ject those who are unable to attain it. Out of eight
not a public offense. It is implied in every grant students examined lat Saturday, only two were of corporate privileges that the grantee shall use granted certificates. If this is adhered to, admission reasonable and ordinary care and caution to avoid to the bar of St. Louis will yet mean something. injuring individuals or the general public.
If a business is, in its nature, hazardous to others, the law requires of those engaged in that business, whether they be natural or artificial persons, to use such care and caution in its prosecution as common prudence demands. If, as the jury has found, the safety of travelers crossing the appellant's road demands that warning should be given of the approach of trains, then it is appellant's duty to cause such signals to be given, and its habitual failure is an offense against the public.
A thing which may be lawfully done may, because of the manner of doing it, become unlawful. As, for instance, a city may lawfully excavate in a street for the purpose of constructing sewers and cisterns, or for the purpose of laying water or gas-pipes, yet the city may, by the careless or unskillful manner of doing so, be guilty of a nuisance. So it is not unlawful for a railroad, turnpike road, or canal company, having authority to construct its work across a public highway, to make an excavation or embankment across such highway in order to construct its own way, but it must take proper precautions for the convenience and safety of tre public while the work is in progress. So, too, it is not unlawful for the owner of an estate to blast rock near to a highway, but if many persons are accustomed to travel the highway at all times during the day, it would be the plain duty of the owner of the estate to give warning when a blast was about to be made, so that those near by might secure their own safety by getting or remaining beyond the reach of harm; and there can be no doubt but habitual blasting, under the circumstances supposed, without the reasonable and necessary precaution necessary to secure the safety of travelers, would render the owner of the estate amenable to a public prosecution for a nuisance.
The appellant may lawfully run its trains at any reasonable rate of speed, but it is bound to take reasonable precautions to prevent the enjoyment of its privilege from injuring those crossing its road upon public highways. Their rights are equal to those of the appellant, and each must so enjoy his or its own as not unnecessarily to imperil the safety or impair the privileges of the other. There is nothing in these views in conflict with the case of Rex v. Pease, 4 Barnwall & Adolphus, 17, cited by appellant's counsel,
The alleged nuisance in that case consisted in running locomotives and trains, which made great noise, along the railway track which was parallel with and very near to a public road. The railway company's charter authorized it to locate its road just where it was located, and to operate trains on its track. The indictment was for doing the very things authorized by the charter. There was no attempt to hold the defendant liable for failing to use reasonable and necessary precautions in doing what it was authorized by its charter to do. On the contrary, the jury found expressly that all reasonable precautions consistent with the use of the road had been taken.
If this indictment had been for running the appellant's trains along or across the turnpike road, whereby the safety of travelers was imperiled,
WHATEVER, not merely personal, would be a matter of defense for the principal debtor, were he sued alone, should be admitted as a defense in favor of the principal and surety when they are sued together. The principal debtor is the real debtor, and the surety but security for the payment of the principal's separate debt; and off-setting a demand in favor of the principal debtor alone, when sued with bis surety, is setting off against each other what may be regarded as essentially mutual debts.
SHELDON, J., delivered the opinion of the court:
This was a suit upon an appeal bond executed by George Himrod, John B. Lovingston and Mortimer Millard, to Thomas Baugh, on the 31st day of October, 1872, upon an appeal to the Circuit Court of St. Clair County, from a judgment recovered by said Baugh against said Himrod and A. E. Ellithorpe, on the 30th day of October, 1872, in the city court of East St. Louis, for the sum of $338.95 and costs of suit.
The declaration avers that, at the April term of such circuit court, on the 20th day of April, 1874, the judgment appealed from was affirmed, and the appeal dismissed for want of prosecution. The breach assigned is the non-payment of the judgment. The suit was brought for the use of Levi Baugh, to whom, it is alleged, the judgment was assigned for a valuable consideration, on the 2d day of June, 1874. Judgment was given for the plaintiff, the damages being assessed at $453.90, and the defendants appealed to this court,
The error assigned is in sustaining a demurrer to the defendant's special plea of set-off.
The plea was, in substance, that one Neiderfeldt obtained two judgments against the said Thomas Baugh on the 4th day of March, 1874, one for $182.32, and the other for $76.25; that, subsequently, there was a garnishee proceeding instituted upon the judgments against the aforesaid Himrod and Ellithorpe, as garnishees of Thomas Baugh; that, on the 11th day of June, 1874, judgment was rendered against them in that proceeding as such garnishees, for the sum of $187.67