Wis. 613. In the case of Lillard v. McGee, 4 Bibb, 165, where the claim. was for slander, Boyle, C. J., delivering the opinion of the court, said: "A man can not, indeed, according to the principles of the common law, be said to be injured by a wrong done unless it were done in prejudice of a previously existing right; and in this respect the statute varies from the common law. But McGee was possessed of such a right, for at the time the sale was made, he had a right to a reparation in damages for the injury done to his reputation; and the fraud in the sale was in fact no less prejudicial to him than if it had been committed after the rendition of the judgment." And Rothrock, J., delivering the opinion of the court in Weir v. Day, 57 Iowa, 87, said: “It appears to be settled beyond controversy, that a person having a claim for a tort is a creditor." In that case the claim was for damages for the unlawful sale of intoxicating liquors.

In Harris v. Harris, 23 Gratt. 737, it was decided that a party claiming damages for the acts of another must be regarded in law as much the creditor of that other as one holding his bonds or other promises to pay. In several of the cases cited above, the conveyances sought to be avoided were made while the action to recover damages for the tort was pending; but it seems that even before the action is commenced, the party injured is to be regarded as a creditor of the tort feasor: Shean v. Shay, 42 Ind. 375; Corder v. Williams, 40 Iowa, 582; Patrick v. Ford, 5 Sneed, 532, note. In the case of Shean v. Shay, supra, the slanderous words were spoken on the first of August, 1869, the deed was made on the seventeenth of November, 1869, and the suit for slander was commenced on the twenty-sixth of November, 1869. The time when the injury is committed is the date when the liability of the wrong-doer becomes fixed. But see Hill v. Bowman, 35 Mich. 191, where it was held that a disputed claim for damages sounding in tort is not a debt before it has been prosecuted to judgment, and does not constitute the claimant a creditor, nor invest him with the right given by law to creditors to question voluntary transfers of their debtor's property. This decision, however, differs from the great weight of authority on this question. The following are the torts, claims for which were held to constitute the claimants creditors in the foregoing cases: Slander, illegal sale of intoxicating liquors, assault and battery, trespass quare clausum fregit, embezzlement, and false representations.

CLAIM FOR DAMAGES FOR BREACH OF PROMISE OF MARRIAGE is also such a claim as will entitle the holder to set aside a conveyance made to defeat the recovery of the plaintiff: Lowry v. Pinson, 2 Bailey, 324; Smith v. Culbertson, 9 Rich. L. 106; Hoffman v. Junk, 51 Wis. 613.

CLAIM OF FEME Covert againST HER HUSBAND under a marriage contract, or in proceedings to obtain a divorce and alimony, is within the protection of the statutes against fraudulent conveyances: Taylor v. Wyld, 8 Beav. 159; Blenkinsopp v. Blenkinsopp, 12 Id. 568; S. C., 1 De G. M. & G. 495; Rider v. Kidder, 10 Ves. 360; Claggett v. Gibson, 3 Cranch C. C. 359; Turner v. Turner, 44 Ala. 437; Draper v. Draper, 68 Ill. 17; Frakes v. Brown, 2 Blackf. 295; Ruffing v. Tilton, 12 Ind. 259; Dugan v. Trisler, 69 Id. 553; Bailey v. Bailey, 61 Me. 361; Feigley v. Feigley, 7 Md. 537; Livermore v. Boutelle, 11 Gray, 217; Chase v. Chase, 105 Mass. 385; Morrison v. Morrison, 49 N. H. 69; Youngs v. Carter, 50 How. Pr. 410; Kamp v. Kamp, 46 Id. 143; Bonslough v. Bonslough, 68 Pa. St. 495; Nix v. Nix, 10 Heisk. 546; Boils v. Boils, 1 Coldw. 284; Brooks v. Caughran, 3 Head, 464; and see note to Thayer v. Thayer, 39 Am. Dec. 218, for a discussion of the wife's right to a void conveyances madewith intent to defraud her. In Feigley v. Feigley, 7 Md. 537, it was decided that a wife, in reference to her claim upon

her husband for support or alimony, stands to a certain extent in the same relation that a creditor stands towards his debtor. And Mason, J., delivering the opinion of the court, said: "We do not wish to be understood as carrying this doctrine to an extent which would impose any restraint upon the husband in the free and unlimited exercise of his right to alienate his property at will, even though in the exercise of this right he strips himself of all means of supporting or maintaining his wife, provided he does so bona fide, and with no design of defrauding her of her just claims upon him and his estate. There is this difference between the claim of the wife upon the husband's estate and that of a creditor upon the estate of his debtor: in the latter case a debtor can not, even by a bona fide gift of the whole or a part of his property. to a third party, impede his creditor in the collection of his debt. Under such circumstances, such a transfer would be voluntary, and, as against a bona fide creditor, void in point of law. Not so as respects the gifts or voluntary transfers by a husband of his property in relation to the rights of his wife. If not made with the actual intent of defeating the rights of his wife, they will be sustained, although they leave her without the means of a subsistence." Agnew, J., delivering the opinion of the court in Bonslough v. Bonslough, 68 Pa. St. 499, said: "There is no reason why a wife whose husband has deserted her, and refused to perform the duty of maintenance, or who by cruel treatment has compelled her to leave his house and commence proceedings for divorce and maintenance, should not be viewed as a quasi creditor in relation to the alimony which the law awards to her. So long as she is receiving maintenance, and is under his wing, as it were, she is bound by his acts as to his personal estate; but when she is compelled to become a suitor for her rights, her relation becomes adverse, and that of a creditor in fact, and she is not to be balked of her dues by his fraud." And a conveyance, though made by the husband after he has fraudulently induced the wife to withdraw her bill for divorce, will be set aside: Brooks v. Caughran, 3 Head, 464; Nix v. Nix, 10 Heisk. 546. In Livermore v. Boutelle, 11 Gray, 217, the conveyance set aside was made by the husband after he had committed adultery, but before the wife filed her bill for divorce.

CLAIMS THAT ARISE FROM CONTRACT are in force from the date of the agreement. The liability arises at that time, although no demand accrues until afterwards: Richardson v. Smallwood, Jac. 552; Wooldridge v. Gage, 68 Ill. 157. The relation of debtor and creditor arises at the time of the signing of a bond, and the obligee may impeach a conveyance made by the obligor between that time and the breach of the condition: Thompson v. Thompson, 19 Me. 244; Carlisle v. Rich, 8 N. H. 44; Stone v. Myers, 9 Minn. 303. The distributees of an estate are creditors of the administrator from the date of the execution of his bond, and may set aside as fraudulent a voluntary conveyance subsequently executed by him, although a devastavit may not occur, or may not be judicially ascertained until after the execution of the conveyance: Anderson v. Anderson, 64 Ala. 403. In delivering the opinion of the court in this case, Brickell, C. J., said: "The term 'creditors,' as employed by the statute, has been construed liberally, and not in a narrow, strict, or technical sense. Whoever has a right, claim, or demand founded on contract, whether contingent or absolute, for the performance of a duty, or for the payment of damages if the contract should not be fully performed, has been regarded as a creditor, within the meaning of the statute, against whom a voluntary conveyance will not be supported, though no breach of the contract furnishing a cause of action may occur until after the execution of the conveyance." See also Bibb v. Freeman, 59 Ala. 612. Where

a husband, upon his marriage, made a contract with trustees that in case his wife should survive him, a sum of money should be paid to her, it was held that she was a creditor within the meaning of the statute 13 Eliz., c. 5: Rider v. Kidder, 10 Ves. 360. The grantee of a warranty deed is regarded as a creditor of the grantor from the date of the deed, and may maintain a suit to set aside a fraudulent conveyance made subsequent to that date: Gannard v. Eslava, 20 Ala. 741; Rhodes v. Green, 36 Ind. 7. But in Bridgford v. Riddell, 55 Ill. 261, it was decided that the relation of debtor and creditor does not exist between a grantor and grantee, in respect to covenants for title contained in the deed, until there has been a breach of such covenants. See also Post v. Stiger, 29 N. J. Eq. 554.

DEET NEED NOT BE DUE at the time of a fraudulent conveyance, in order to entitle the creditor to have it set aside: Howe v. Ward, 4 Me. 195; Cook v. Johnson, 12 N. J. Eq. 51.

CONTINGENT CLAIM IS AS FULLY PROTECTED by the statute as one that is absolute. And the holder of such a claim may maintain an action to set aside a fraudulent conveyance made subsequently to the time when such contingent liability is incurred. A creditor within the statute against frauds, as to whom a voluntary conveyance is void, is not necessarily one who has a demand for money which is due, or running to maturity, or who has an exist ing cause of action. Whoever has a claim or demand on a contract in existence at the time when a voluntary conveyance is made is a creditor within he meaning of the statute: Foote v. Cobb, 18 Ala. 585; Bibb v. Freeman, 59 Id. 612; Fearn v. Ward, 65 Id. 33; Bay v. Cook, 31 Ill. 336; Cook v. Johnson, 12 N. J. Eq. 51; Manhattan Co. v. Osgood, 15 Johns. 162; S. C., 3 Cow. 612; Seward v. Jackson, 8 Cow. 406; Van Wyck v. Seward, 18 Wend. 375; Woodley v. Abby, 5 Call, 336; McLaughlin v. Bank of Potomac, 7 How. 220. And a debt due from a guarantor is within the rule, although it be contingent, and such a debt at the time as could not be proved under an English commission of bankruptcy, or under our insolvent laws: Jackson v. Seward, 5 Cow. 67. In delivering the opinion of the court in this case, Sutherland, J., said: “The question of creditor or not can not turn on the ground of contingent liability when considering this act. If it should, all indorsers and sureties would be deprived of its protection." Indorsers of commercial paper are regarded as standing in the relation of debtors under the statute: Cook v. Johnson, 12 N. J. Eq. 51; Cramer v. Reford, 17 Id. 367. The holder of a note given by a fraudulent grantor before but not purchased until after the date of the conveyance has the right to impeach the conveyance: Warren v. Williams, 52 Me. 343.

RESPONSIBILITY FOR THE ACTS OF A PARTNER is a risk which a person can not evade by a voluntary conveyance: Thomson v. Dougherty, 12 Serg. & R. 448. The liability of a surviving partner to account for the partnership property is a fixed present liability, and is within the protection of the statute against fraudulent conveyances. And the representatives of a deceased partner stand in the relation of creditors to the surviving partner: Alston v. Rowles, 13 Fla. 117; White v. Russell, 79 Ill. 155. If partners submit partnership accounts to arbitrators for settlement, and the arbitrators decide that certain partnership debts shall be paid by one of the partners, he becomes, from the date of the award, a debtor to his copartners, within the purview of the statute: Swan v. Smith, 57 Miss. 548.

LIABILITY AS SURETY is as clearly within the statute as the liability as principal: Gibson v. Love, 4 Fla. 217; Bay v. Cook, 31 Ill. 336; Russell v. Stinson, 3 Hayw. 1; Crane v. Stickles, 15 Vt. 252; Curd v. Miller's Ec'rs, 7

Gratt. 185. The liability of the principal in an obligation to reimburse his surety for any payment made by the latter, in consequences of his so becoming surety, commences at the time when the obligation is delivered; and whenever payment may be made by the surety he is to be considered as a creditor of his principal from the time of such delivery: Choteau v. Jones, 11 Ill. 300; Sargent v. Salmond, 27 Me. 539. A surety who has paid a debt is entitled to be subrogated to all the rights of the creditor, and may impeach a fraudulent conveyance: Greene v. Starnes, 1 Heisk. 582; Highland v. Highland, 5 W. Va. 63.

ASSIGNEES IN BANKRUPTCY or insolvency are clothed with all the powers of the creditors of the insolvent, in the matter of setting aside fraudulent conveyances made by him, and which he could not himself disturb: Bradshaw V. Klein, 2 Biss. 20; Carr v. Hilton, 1 Curt. 230; Shakleford v. Collier, 6 Bush, 149; Ward v. Van Bokkelen, 2 Paige, 289; Tams v. Bullitt, 35 Pa. St. 308; Anderson v. Maltby, 2 Ves. jun. 244; Butcher v. Harrison, 4 Barn. & Adol. 129; Grimsby v. Ball, 11 Mee. & W. 531.

A TRUSTEE IS REGARDED AS A DEBTOR from the time that he receives the money which he ought to pay to the party entitled to it: McLemore v. Nuckols, 37 Ála. 662. A voluntary conveyance of his property, made by an executor, is invalid as against the claim of a legatee to the residue of the estate of the testator: Soden v. Soden, 34 N. J. Eq. 115. When a father, for the purpose of defrauding his creditors, purchases property and causes it to be conveyed to his daughter, a court of equity will, at the suit of a judgment creditor, de. clare the deed fraudulent and void: Lander v. Beers, 48 Cal. 546.

WHERE A DECEDENT HAS, IN HIS LIFE-TIME, made a conveyance of real estate for the purpose of defrauding his creditors, the special administrator of his estate may, in California, maintain an action to recover it back, in the same manner that a general administrator could: Forde v. Exempt Fire Co., 50 Cal. 299. In Illinois, any creditor of the estate of a deceased person may file a bill to set aside a conveyance made by the deceased to defraud such creditor: Beebe v. Saulter, 87 Ill. 518. But in this case it was held that an administrator could not, under an order of court, sell and convey any interest in lands conveyed by the intestate to defraud creditors, nor could his grantee maintain a bill to set aside such conveyance, because no title passed by the grant of the administrator.

WHERE DEBTOR PAYS OFF DEBTS after the date of a voluntary conveyance by him only by contracting other debts, the conveyance will not be by this contrivance made any the less fraudulent as to the creditors who take the place of those whose claims have been liquidated by the money furnished by them. The subsequent creditors, whose means are used to pay off the indebtedness contracted prior to the execution of the conveyance, may avoid it as constructively fraudulent as to them: Paulk v. Cooke, 39 Conn. 566; Barhydt v. Perry, 57 Iowa, 416; Mills v. Morris, Hoffm. Ch. 419; Savage v. Murphy, 34 N. Y. 508; McElwee v. Sutton, 2 Bailey, 128. Foster, J., delivering the opinion of the court in Paulk v. Cooke, 39 Conn. 572, said: "But it is said that the debts which existed at the time that this conveyance was made have since, with one exception, been paid; and that a voluntary conveyance can be impeached only by those who were creditors at the time; not by subsequent creditors. This principle clearly has no application where there has been a continued unbroken indebtedness. The debts are owed, though they may be due to new creditors. It is a most unsubstantial mode of paying a debt, to contract another of equal amount. It is the merest fallacy to call such an act getting out of debt."

SUBSEQUENT CREDITORS STAND UPON A DIFFERENT FOOTING from that of existing creditors, as to their right to avoid voluntary conveyances. "The difference between existing and subsequent debts, in reference to voluntary conveyances, is this: as to the former, the fraud is an inference of law; but as to the latter, there must be fraud in fact:" Williamson, Ch., in Cook v. Johnson, 12 N. J. Eq. 51, 54. Where conveyances are made in actual fraud, that is, with intent to delay, hinder, or defraud creditors, they may be avoided by any creditor or purchaser, subsequent as well as antecedent: Huggins v. Perrine, 30 Ala. 396; Williams v. Avery, 38 Id. 115; Kirksey v. Snedecor, 60 Id. 192; Hall v. Sands, 52 Me. 355; Winchester v. Chaiter, 12 Allen, 606; Parkman v. Welch, 19 Pick. 231; Carlisle v. Rich, 8 N. H. 44; Cook v. Johnson, 12 N. J. Eq. 51; Belford v. Crane, 16 Id. 265; Allaire v. Day, 30 Id. 231; Reade v. Livingston, 8 Am. Dec. 520; Burdick v. Gill, 2 McCrary, 486. In discussing this question, in Hall v. Sands, 52 Me. 358, Davis, J., who delivered the opinion of the court, said: "For if it was both fraudulent and voluntary, so as to raise the presumption of a secret trust, it is a continuing fraud, affecting those who subsequently give credit to the grantor. He not only puts his property beyond the reach of existing creditors; he keeps it beyond the reach of subsequent creditors. His conveyance operates, and must be presumed to have been intended to operate, to the injury and delay of both classes of creditors alike. It is therefore void as to both alike."

In Pennsylvania it is held that the statute of 13 Elizabeth does not make a voluntary conveyance void as to future creditors, because of an existing indebtedness which might thereby be hindered, delayed, or defeated, unless there is evidence to indicate that the grantor intended to withdraw his property from the reach of such creditors. And that a subsequent creditor can only avail himself of the fraud which is practiced against him: Snyder v. Christ, 39 Pa. St. 499; Monroe v. Smith, 79 Id. 459; Harlan v. Maglaughlin, 90 Id. 293; Kimble v. Smith, 95 Id. 69. This seems to be a stricter construction of the statute than it has received elsewhere. A judgment which has been obtained by a creditor for a prior and subsequent demand together is treated as a subsequent demand: Moritz v. Hoffman, 35 Ill. 553; Quimby v. Dill, 40 Me. 528; Baker v. Gilman, 52 Barb. 26.

CLAIMS FOR TAXES are within the protection of the statute against fraudulent conveyances: Stimson v. Wrigley, 86 N. Y. 332. And so are demands for forfeitures due to the state for offenses: Jones v. Ashurt, Skin. 357; Shaw v. Bran, 1 Stark. N. P. 319; Perkins v. Bradley, 1 Hare, 219; Bullock v. Dodds, 2 Barn. & Ald. 258; Morewood v. Wilkes, 6 Car. & P. 144; State v. Fife, 2 Bailey, 337. A claim for the maintenance of a bastard child is within the purview of the statute: Damon v. Bryant, 19 Mass. 411. But costs of suit are not a debt until judgment therefor has been rendered; Pelham v. Aldrich, 8 Gray, 575; Ogden v. Prentice, 33 Barb. 160.

FRIEND ET AL. v. WOODS.

[6 GRATTAN, 189.]

LIABILITY OF COMMON CARRIERS ON OUR NAVIGABLE STREAMS is fixed by the common law.

ACT OF GOD WHICH EXCUSES COMMON CARRIER must be a direct and vio

lent act of nature.