witness actually present in court. On the other hand, such is the large territorial extent of the Circuit Courts of the United States-extending in this district three hundred miles or more that to say a party may absolutely summon all the witnesses he pleases, and if successful tax the entire mileage against the other party, would often work injustice. The true practice is, that in order to prevent hardships and oppression, the clerk will not tax attendance, where witnesses actually appear, for more than one hundred miles, unless upon an order of court. The court having heard the case, knowing the issues and observing the course of the trial, is able to determine whether it is reasonable and proper to allow such fees. It depends very much whether they were called for the purpose of establishing facts which could be well proved by written documents, or to establish a point in the case which could just as well have been established by depositions. If such is the fact, there is no good reason for allowing any mileage beyond the one hundred miles. In this case the issue was one as to the genuineness of a signature. Under these circumstances, as the witnesses properly attended, and as there were no more of them than necessary, the actual mileage and per diem is allowed. But allowing this, the fees for taking dispositions not used are rejected. The practice that has prevailed in the Federal Court here for more than twenty years, according to Treat, J., is: That when a witness is brought into court from a greater distance than one hundred miles, there will be taxed against the adverse party, if defeated, mileage for only one hundred miles, unless from the exceptional character of the case, the court awards mileage for a greater distance. The successful party, producing the witness, must pay the costs of extra mileage when not otherwise ordered by the court, to be taxed against him. When a witness is produced on the stand by a party taking his deposition, no fees for taking the deposition should be allowed.

In the same case, a question was raised as to the right to tax witness fees where the subpoena had not been served by the marshal. Dillon, J., said: The practice in this court is, that as a subpoena is merely directed

to the witness instead of the marshal, it can be served by any person; the service to be verified by affidavit. That is a reasonable practice, and, if there is any doubt about it arising under the provision of the statute requiring that all process directed to the marshal shall be served by the marshal, I am not desirous of changing it. But I can not see that any hardship or evil can arise from susstaining the practice of allowing a subpoena to be served by anybody; such service to be properly authenticated.

EFFECT OF FRAUDULENT CONVEYANCES UPON THE RIGHT OF HOMESTEAD. In a former issue we cited some cases showing the effect of fraudulent conveyances upon the right of dower. Do the same principles apply also to the right of homestead? Most of the cases answer this question, in the affirmative, and hold that a conveyance set aside for fraud at the suit of the husband's creditors, does not estop the grantor, or his wife, from claiming homestead in the premises thus conveyed.1

Two general reasons for this rule may be deduced from the cases: 1. That the homestead privilege is created for the benefit of the wife and children, as well as for that of the husband and father; and, therefore, it is not right that the former should be prejudiced by the wrongful act of the latter.2

2. That the conveyance being void as to creditors, it stands as to them as though it had never been made; if it had not been made, the debtor, or his wife, could have asserted the right of homestead in the premises against them; and they can not assume the inconsistent positions of asserting the nullity of the

(1) Cox v. Wilder, 2 Dillon C.C. 45; s. c., 7 N. B. R. 241; Smith v. Kehr, 2 Dillon C.C. 50, 63; Danforth v. Beattie, 43 Vt. 138; Kuevan v. Specker, 11 Bush. 1; Crummen v. Bennett, 68 N. C. 494; Sears v. Hanks, 14 Ohio St. 298; Pennington v. Seal, 49 Miss. 518, 527; Edmonson v. Meacham, 50 Miss. 34; Castle v. Palmer, 6 Allen, 401; McFarland v. Goodman, 6 Bissell, 111; Smith v. Rumsey, 33 Mich. 183, 191 (overruling dictum in Herschfeldt v. George, 6 Mich. 456); Dreutzler v. Bell, 11 Wis. 114; Murphy v. Crouch, 24 Wis. 365; Pike v. Miles, 23 Wis. 164; Vogler v. Montgomery, 54 Mo. 577; s. C., 1 Central Law Journal, 65. Contra: Piper v. Johnston, 12 Minn. 60; Getzler v. Saroni, 18 Ill. 511; Chambers v. Sallie, 29 Ark. 407; Huey's Appeal, 29 Penn. St. 219; McClurg v. Johnson, Sup. Court Tenn., Nash. Com. & Leg. Rep., Oct. 11, 1876; s. c., 2 Law & Eq. Rep. 78.

(2) "He can not maintain it to be both good and bad. The law allows no such paradox." McFarland v. Goodman, 6 Bissell, 117, Hopkins, J.

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 another way,

(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 if 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."

66

(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, are 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 and 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."

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.s

(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 conveyance 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 having 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 against 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 plaintiff's 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 debtor as a homestead, it can make no difference, so far as the creditor is concerned, by what sort of title the debtor occupies. By By attempting the sale the creditor affirms that the debtor has a saleable interest; and the law means that that interest should. not be taken away, and the debtor disturbed in his possession by sale under judicial process."

If a conveyance of land is procured by an insolvent debtor to his wife and children, it will be treated in equity as having been made to himself; and if, with his family he occupies it as a homestead, it will be protected as such; since a title which, if the property were not homestead, could be subjected by creditors, is sufficient to support the homestead right.7

8

Besides, the fraud does not consist in conveying the homestead; for the creditor could not have reached that with his execution had the debtor retained it. The fraud consists in conveying the other part of the land, that the creditor can reach by his execution. But as to the homestead he has no concern. That matter rests between the fraudulent grantor and his grantee. This appears to be the most satisfactory ground upon which the rule has been placed. It resolves itself into this: that as to exempt property there are, within the meaning of the statute of frauds, no creditors. Statutes creating exemptions were not designed to imprison the debtor in his homestead,' 10 nor to fetter the transfer of chattels.11 There being

homestead property, which the creditor can sell, he has interest enough to secure his homestead from sale. The validity of the fraudulent conveyance, as between the parties to it, is no concern of the creditors, when it has been set aside as to him. All he can ask is, that, as against him, it shall confer no rights upon anyone. Were these plaintiffs judgment creditors of the fraudulent grantees, and levying their execution as such, the case would be entirely different; and it might then well be said in response to the present claim of Hanks, that one person can not have a homestead in the property of another."

(6) Pennington v. Seal, 49 Miss., 527. Opinion by Simrall, J.

(7) Edmonson v. Meacham, 50 Miss., 40, in substance. Opinion by Simrall, J. Dreutzler v. Bell, 11 Wis., 114.

(8) Crummen v. Bennett. 68 N. C. 498; Smith v. Rumsey, 33 Mich. 191; Dreutzler v. Bell, 11 Wis. 118; Pike v. Miles, 23 Mo. 168; Legro v. Lord, 10 Maine, 165.

(9) Smith v. Allen, 39 Miss. 469, 475; Duvall v. Rollins, 71 N. C. 221; Smith v. Rumsey, 33 Mich. 191. (10) Morris v. Ward, 5 Kan. 247.

(11) Shaw v. Davis, 55 Barb. 389; Schlitz v. Schatz, Bissell, 248; Paxton y. Freeman, 6. J. J. Marshall, 234.

If he

then, no legal restraint upon the debtor against conveying or selling such property, except in those states where the wife is required to join in the conveyance of the homestead, the motives with which such transfers are made are of no concern whatever to the creditor. procures a conveyance to be set aside as fraudulent, he takes what is vendible under his execution; the title to the rest is a question to be disputed between the debtor and his grantee. "Since creditors could enforce no process against it, could no more pursue it for their debts against him (the grantor) than they could pursue for the same purpose the absolute property of the Government, the law will not allow it to be said that the transfer of it, if any were made, operated to defraud creditors. When the law declares that a debtor's disposal of his intent to defraud his

property with

creditors

shall

be voidable at the instance of his creditors, and at the same time declares that specific property of the debtor shall be exempt as against his creditors' adverse claims, the provisions are in pari materia, and must be construed together, and the latter provision must be held to except this exempt property from the operation of the former provision. Certainly it would be very inconsistent to say that a debtor's disposal of property, and which property, in so far as the creditor and his claims are concerned, may be said to have no existance at all, is a fraud upon the creditor. The law excludes the homestead from all remedies of creditors in all courts, and the power of the creditor to take it against the will of the owner is absolutely subverted. There is no question left as to whether there is or should be a remedy somewhere to subject the homestead. The law has closed the door against all discussion about it."'12

*

reason that, being exempt, it was no more beyond their reach than before."'14

Application of the foregoing principles will readily suggest themselves; but it may be useful to refer to the facts of one or two cases.

Where a husband made a voluntary conveyance of property, including the homestead, to the wife, and afterwards abandoned her, fled the country, and was adjudged a bankrupt, the conveyance was held void as to creditors, but good as between the parties to it, and therefore effectual to convey the husband's right of homestead to the wife; and, the wife remaining in actual occupancy of the premises, was entitled, as against the assignee in bankruptcy, to have the homestead exemption set apart to her. "To that extent," said Dillon, J., "the court could, if necessary, give efficacy to the deed of trust in her favor. If it be necessary that the exemption be applied for in the name of the husband, the court would even allow her to apply in his name, so as to prevent the amount from going into the hands of the assignee, who has no claim or equity whatever to it. 15"

a

16

Under a statute providing that no conveyance of the homestead "is valid in law, unless the wife shall join in such conveyance, it has been held that a conveyance of the homestead by the husband to third person, and by such third person to the wife, was valid as against the husband's creditors; since the conveyance being by the husband alone, it had no effect upon homestead estate. Such a conveyance would not estop the husband from afterwards asserting the right of homestead, and certainly not the wife.17

(14) Pike v. Miles, 23 Wis. 168, Paine, J., Dreutzler v. Bell, 11 Wis. 118, Cole, J.

(15) Smith v. Kehr, 2 Dillon C.C. 50, 63-opinion by Dillon, Circuit J. affirming Treat, District J.

(16) Mass. Stat. 1857, ch. 298, § 6.

17) Castle v. Palmer, 6 Allen, 401. Compare Mallory v. Horan, 12 Abbott Pr. (N. S.) 289, where a similar question arose as to dower.

(To be continued.)

WE are pleased to note that the committee appointed to examine candidates for admission to the bar are insisting on a high standard, and do not hesitate to reject those who are unable to attain it. Out of eight students examined lat Saturday, only two were granted certificates. If this is adhered to, admission to the bar of St. Louis will yet mean something.

APPEAL from Marion Circuit Court.

R. H. Rountree, for appellant;

"A public offense, in the meaning of this Code, is any act or omission for which the law has prescribed a punishment." Criminal Code, sec. 1. "All public offenses may be prosecuted by indictment, except public officers." Criminal Code, sec. 6. An indictment may be set aside when it "was not found and prosecuted as required by this Code." Sub-sec. 3 of sec. 159. The indictment in this case was insufficient, and ought to have been quashed or set aside on the demurrer of appellant, because it does not state facts which constitute an offense for which the law of this state has prescribed a punishment.

There is no statute requiring a railroad company to carry on its trains a bell, or to ring a bell, or to carry or blow a steam-whistle at highway crossings or other places, or requiring its trains to move slow or fast at highway crossings-there is no statutory provision on this subject, and, therefore, if any law is violated by the facts charged in the indictment, it must be the common law (1 Kent, 470); and the common law does not require a railroad company to carry or ring a bell or blow a steam whistle at a highway crossing. See Angell and Ames on Corporations, sec. 394; 2 Redfield on Railways, p. 368, chap. 30, sec. 225, subsec. 3, 369, and sub-sec. 6; Wood on Law of Nuisance, p. 2, and note, and pp. 788, 790, 791.

Thomas E. Moss, attorney-general, for appellee, cited in argument 3 Blackstone, p. 216; People v. Sands, 1 Johns.; Commonwealth v. Rand., 6 Rand; Wharton, sec. 2370; Wood on Law of Nuisance, secs. 747 to 754, and cases cited.

COFER, J., delivered the opinion of the court: Although the appellant's charter authorizes it to operate its road by running trains thereon, and does not limit the speed at which they may be run, nor require it to ring a bell or blow a whistle at the crossings of public roads, it does not necessarily follow that to omit to give one of these signals, or to take other precautions to avoid injuring persons traveling on intersecting highways, is not a public offense. It is implied in every grant of corporate privileges that the grantee shall use reasonable and ordinary care and caution to avoid 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 the 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 his 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