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(109 Ind. 295)

INDIANA, B. & W. Ry. Co. 0. QUICK. *

(Supreme Court of Indiana. January 11, 1887.) 1. RAILROAD COMPANIES-FENCES-KILLING STOCK-DEPOT GROUNDS.

Railroad companies are not required to fence their depot grounds, where the nature of their business is such as to make a fence not only inconvenient to them, but to the public as well; and they are not liable in damages for the death of animals which stray upon the track at such a place, and are, without negligence, killed by

their trains. 2. APPEAL-RECORD-BILL OF EXCEPTIONS-LONG-HAND MANUSCRIPT OF REPORTER.

The long-hand manuscript of evidence taken by a short-hand reporter, as it apo pears in a bill of exceptions, is, under section 1410, Rev. St. Ind. 1881, an original document incorporated therein; and original papers read in evidence, accompanying and properly identified by such long-hand report, may be treated as part thereof, and properly in the record, notwithstanding the general rule that original papers read in evidence cannot be certified and transmitted with the record to the su

preme court, but must be copied in the bill of exceptions at some proper place. Appeal from circuit court, Clinton county.

c. W. Fairbanks and W.R. Moore, for appellant. Paul & Humphries and W. N. Reeves, for appellee.

NIBLACK, J. This action was commenced in the Montgomery circuit court, and by a change of venue taken to the Clinton circuit court, where it was tried. The complaint charged that the Indiana, Bloomington & Western Railway Company, on the twenty-first day of July, 1883, operated a line of railway between Indianapolis, in this state, and the city of Bloomington, in the state of Illinois, running through the county of Montgomery, in the firstnamed state; that on that day, and in said county of Montgomery, the railway company ran its locomotive and train of cars upon five horses belonging to the plaintiff, Quick, and killed said horses, which were of the aggregate value of $1,000; that, at the place at which the horses entered upon said railway line, it was not fenced. The railway company answered in three paragraphs—First. In denial. Second. That the horses mentioned in the complaint entered upon the railway track and were killed at a point where said track could not be fenced without occasioning great inconvenience to the public; that is to say, at a point where said track crosses a highway, and where the fencing of such track would unlawfully obstruct said highway. Third. That said horses entered upon the railway track at a point where the same could not be lawfully fenced in,-that is to say, at the railway company's depot and station grounds at Wesley station, in said county of Montgomery; said depot and station ground being used to receive and discharge freight and passengers, that a fence at said point would greatly embarrass the railway company, and the traveling and shipping public, in the transaction of railway business at said station. Issue trial by jury. Verdict in favor of Quick. A new trial refused, and judgment on the verdict.

It was shown at the trial that Wesley station is a flag-station upon the railroad in question, on the west side of a public highway running from north to south through Montgomery county; that the passenger depot consists of a small building and a platform over 60 feet long, situate on the south side of the main track, and immediately west of the highway; that, at a point near 600 feet west of the highway, a switch diverges from the main track, and runs up to within a short distance of the highway at a point south of the

Railroad companies are not required to fence their depot grounds. McGrath v. Detroit, M. & M. R. Co., (Mich.) 24 N. W. Rep. 854; Bremmer v. Green Bay, S. P. &N. R. Co., (Wis.) 20 N. W. Rep. 687; Smith v. Chicago, M. & St. P. Ry. Co., (Iowa,) 15 N. W. Rep. 303 ; Chicago & G. T. Ry. Co., v. Campbell, (Mich.) 11 N. W. Rep. 152; Prickett v. Atchison, T. & S. F. Ry. Co., (Kan.) 7 Pac. Rep. 611; 8. C. 9 Pac. Rep. 464.

See, also, Payton v. Chicago, R. I. & P. Ry. Co., (Iowa,) 36 N. W. Řep. 877. *Rehearing denied, 9 N. E. 925.

depot, and about 64 feet distant from the main track; that there are cattlepens contiguous to the switch, used for shipping cattle and other animals; that the open area between the switch and the main track in the vicinity of the depot is used in the reception and the discharge of freight, and in connection with the general business of the railway company at that place; that there is a fence on the north side of the main track extending up to the highway; that there is also a fence on the south side of the switch, commencing at the highway, and thence running west, to and along the side of the main track, but that there is no fence on the west side of the highway to prevent animals from entering either upon the switch or main track, or into the open area between the two side fences; that there is a cattle-pit and cross-fences a short distance west of the terminus of the switch, and a trestle-bridge of considerable length several hundred feet. further weşt; that on the twentyfirst day of July, 1883, Quick, who lived about one mile and a quarter north of Wesley station, was the owner of five valuable horses, which he had in pasture in a lot near his house; that in the early part of that night a storm swept over the farm on which Quick resided, and blew down a part of the fence around the lot in which the horses were inclosed; that the horses thereupón passed out of the lot, through the break in the fence thus made, and went out upon the highway, to which reference has been made, in the direction of Wesley station; that, on reaching the railway, the horses turned west, and went some distance down the open space between the main track and the north line of fence running parallel with it; that, soon after, a freight train approached Wesley station from the east; that, after the train passed the station, the horses ran onto the track in front of it, and one of them, falling into the cattle-pit, was run upon and killed; that the remaining four horses leaped over the cattle-pit and continued on the track until they ran into the trestle-bridge, where they were also run upon and killed. There was some conflict in the evidence as to the condition of the cattle-pit at the time one of the horses fell into it as stated, and as to some other kindred affairs; but, as there was no question of negligence involved in the issues which the jury were empowered to try, such conflicting evidence had no reference to any material matter now before us.

The controlling question at the trial was, had the railway company wrongfully failed to fence in its track at the point at which the horses entered upon its right of way? Wood, in his work on Railway Law, at page 1555, states the general rule to be that railway companies are not required to fence their depot grounds, as such a fence would be a great inconvenience to the companies as well as to the public; and that where cattle or other domestic animals, straying upon the highway, enter upon the track of a railway company over such grounds, or at any other point where the company is not obliged to erect a fence, such company can only be held liable for injuries willfully inflicted. See, also, pages 1543 and 1564.

In this state it has been held that railway companies are not required to fence their track at stations and sidings where freight or passengers are received or discharged, and are not liable to pay for cattle or other animals which may wander upon the track at such places, and be killed without negligence on the part of such companies. This holding has been, and still is, upon the theory that, when a railway track is as securely fenced as the nature of its business and public convenience will permit, it is securely fenced in within the meaning of section 4031, Rev. St. 1881, and is either expressly or in principle sustained by a long line of decided cases. Indianapolis & C. R. Co. v. Oestel, 20 Ind. 231; Jeffersonville, M. & I. R. Co. v. Beatty, 36 Ind. 15; Indianapolis & St. L. R. Co. v. Christy, 43 Ind. 143; Pittsburgh, C. & St. L. Ry. Co. v. Bowyer, 45. Ind. 496;. Ohio & M. Ry. Co. v. Rowland, 50 Ind. 349; Indianapolis, P. & C. Ry. Co. v. Crandall, 58 Ind, 365; Cin. cinnati, R. & Ft. W. R. Co. v. Wood, 82. Ind. 593; Ft. Wayne, C. & L. Ry,

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Co. v. Herbold, 99 Ind. 91. The doctrine which the foregoing cases are cited as sustaining is applied to the essential facts of this case, and consequently a new trial ought to have been allowed for want of sufficient evidence to support the verdict.

The evidence given in this cause was taken down by a short-hand reporter, and a long-hand and duly-certified report of the evidence so given was made by the reporter, and filed with the clerk of the court below. A map of Wesley station and its immediate vicinity, and some other papers in writing which were put in evidence, were attached to this long-hand report, and are referred to and identified by it as exhibits which constitute a part of the evidence. This original long-hand report of the evidence, with the exhibit attached, has been embraced in and certified to as a part of the bill of exceptions. The point is made that the bill of exceptions shows upon its face that it does not contain all the evidence given in the cause, because the accompanying exhibits are not copied into the long-hand report of the evidence, and because original papers cannot be certified to as a part of the transcript of the proceedings below. It is true that, under our former practice, and as a general rule now, a paper read in evidence must be copied into the transcript of the bill of exceptions at some appointed place. It is also true that, as a general rule, an original paper cannot be certified or transmitted as a part of the transcript of the proceedings from which an appeal is prosecuted to this court. But the long-hand report of the evidence before us is not, and does not purport to be, a transcript of the evidence introduced at the trial. It is, under section 1410, Rev. St. 1881, an original manuscript or document incorporated in the bill of exceptions. It follows that original papers read in evidence, and accompanying, and properly identified by, such long-hand report, may be treated in this court as embraced within and constituting a part of it. The exhibits in question are consequently before us as a part of the evidence, and hence we have no reason for concluding that the bill of exceptions does not contain all the evidence given in the case. Marshall v. State, 107 Ind. 173; S. C. 6 N. E. Rep. 142; Wagoner v. Wilson, 108 Ind. —; S.C. 8 N. E. Rep. 925.

The judgment is reversed, with costs, and the cause is remanded for a new trial

(44 Ohio St. 595)
CLARKE and others 0. BOARD OF EDUCATION OF STARR TP.

(Supreme Court of Ohio. January 11, 1887.)
SCHOOLS AND SCHOOL-DISTRICTS_TAXES—INJUNCTION-RESIDENTS OF TOWNSHIP-71 OHIO

L. 187_VALIDITY.

Where suit was brought by the residents of a township to restrain the collection of a tax levied upon their property for school purposes, under an act of the general assembly passed April 16, 1874, (71 Ohio L. 187,) on the ground that the law is one of a general nature, and not uniform in its operation throughout the state, and there was no showing that the plaintiffs have not been, and are not now, availing themselves of the benefits of the school by sending their children to it, held, without deciding whether the law is or is not open to the objection urged, that it was too late afterwards to question the validity of the tax by such proceeding. Error to circuit court, Hocking county.

Suit to enjoin the collection of school taxes. Judgment for defendant. Plaintiffs appealed.

S. H. Bright, for plaintiffs in error. Weldy & Price, for defendant in error.

BY THE COURT. The suit below was brought by the plaintiffs in error, residents of Green township, Hocking county, to restrain the collection of a tax levied upon their property for school purposes in the joint subdistrict created by an act of the general assembly passed April 16, 1874, (71 Ohio L. 187.) The district is composed of a part of the territory of Green and a part of Starr townships, in said county; the parts being contiguous to each other. The relief is sought on the ground that the law is one of a general nature, and not uniform in its operation throughout the state. State v. Powers, 38 Ohio St. 54, is relied on. The district was organized under the law shortly after its enactment; and there is no showing that the plaintiffs have not been, and are not now, availing themselves of the benefits of the school by sending their children to it. Without deciding whether the law is or is not open to the constitutional objection urged, we think it is now too late to question its validity by a suit to restrain the collection of a tax levied for the maintenance of the school. People v. Maynard, 15 Mich. 463; Chesnut v. Shane, 16 Ohio, 607.

Judgment affirmed.

(143 Mass. 365)

PLIMPTON v. GOODELL and another. (Supreme Judicial Court of Massachusetts. Worcester. January 11, 1887.) 1. FRAUDULENT CONVEYANCES-VOID LEVY AND SALE BY CREDITOR.

A conveyance may be void, as intended to defeat, delay, or defraud a creditor, although the creditor has recovered judgment, and has levied on execution and sold real estate of the defendant, and his execution has been returned satisfied, where. in fact, the levy and sale were void, and proceedings had been commenced

to set it aside. 2. SAME-EVIDENCE SUFFICIENT TO Show FRAUD.

There is evidence for the jury that a conveyance was intended to defeat, delay, or defraud creditors in such a case, where it appears that the grantor and grantee, the defendants, were sister and brother, living together; that the grantee knew the facts as to the levy and sale, and believed the sale to be void; that the conveyance was made by advice of the grantor's counsel; and that the grantee gave to the grantor a bond, reciting that “the grantee takes said estate, and agrees to try the title of the same," and which is on condition that the obligation be void if the grantee shall reconvey the premises to the grantor on payment of all sums due" for money loaned, and services performed," in the present or the future. Suit to set aside a deed. Trial in the superior court, before BACON, J., who, upon the evidence, directed the jury to find in the negative upon the issue framed for the jury, which was as follows: "Was the conveyance made by Eliza C. Goodell to Daniel M. Chamberlain, of the real estate described in the plaintiff's bill, made with intent to defeat, delay, or defraud her creditors, or on a secret trust for her, express or implied, and did Daniel M. Chamberlain participate in said fraudulent intent and purpose?” The jury found as directed, and the presiding judge reported the case to the supreme judicial court. The facts are stated in the opinion.

T.G. Kent and A. J. Bartholemew, for plaintiff.

Whether the court should have directed a verdict either way, for the affirmative or the negative, the rule was the same. It was settled in Denny v. Williams, 5 Allen, 1. Such a reservation as this is wholly unusual in a mortgage. The form of the deed is to be taken into account. The fact that the bond of defeasance was a separate paper, and was never recorded, under the circumstances, is a significant circumstance importing fraud. See Harrison v. Trustees Phillips Academy, 12 Mass. 456; New England M. Ins. Co. v. Chandler, 16 Mass. 274, 279; Oriental Bank v. Haskins, 3 Metc. 332. The condition of the bond discloses a fraudulent transaction. Bedlam v. Tucker, 1 Pick. 398; Barnum v. Hempstead, 7 Paige, 568; Lansing v. Woodworth, 1 Sandf. Ch. 43; Rice v. Cunningham, 116 Mass. 469. All the evidence in relation to the amount paid, whether the conveyance is treated as a mortgage or an absolute deed, is subordinate to the main question, and is another way of proving fraud. It would, of itself, be sufficient to set aside the conveyance for a grossly inadequate price. Parker v. Barker, 2 Metc. 430; Osgood v. Franklin, 2 Johns. Ch. 22. If the transaction was entered into for the purpose of defrauding creditors, it would be void, though the whole value of the

property was advanced. Crowninshield v. Kittridge, 7 Metc. 520; Wadswor h v. Williams, 100 Mass. 126. If the conveyance was not wholly void, it would only be good, as against creditors, for the sums advanced before the date of the deed, if the grantor was deeply indebted, and the grantee knew it. Barnum v. Hempstead, supra; Lansing v. Woodworth, supra.

F. P. Goulding and J. M. Cochran, for defendants.

The fact of a conveyance from one to another, with a bond to reconvey, is no evidence of fraud. The plaintiff's evidence must be more consistent with the existence of fraud than non-existence. Somerville v. Hawkins, 10 C. B. 583; Taylor v. Hawkins, 16 Q. B. 308. If there was any evidence of fraudulent intent on the part of the grantor, it is (1) in the circumstances of the conveyance; (2) in the testimony of witnesses as to that intent. In questions of intent, great latitude is allowed. Winchester v. Charter, 102 Mass. 276. The plaintiff had no claim against her, as his execution was satisfied on the record. Pub.St. c. 161, 8$ 13, 51; Colby, Pr. 96, 97. Creditor's only remedy is by a writ of scire facias. Dennis v. Arnold, 12 Metc. 449; Perry v. Perry, 2 Gray, 329. He must first renew his judgment by scire facias. Taylor v.. Robinson, 7 Allen, 253; Mill R. L. F. A. v. Claflin, 9 Allen, 101.

There is a total want of those facts and circumstances which in various cases have been held competent for the consideration of the jury, as in Foster v. Hall, 12 Pick. 89; Taylor v. Robinson, 2 Allen, 563; Stebbins v. Miller, 12 Allen, 591. The only import that the evidence can be made to bear is that he (Chamberlain) was a creditor, and proposed to make further advances, and proposed by the deed to take security. There was no fraud in that. Giddings v. Sears, 115 Mass. 505; Carpenter v. Cushman, 121 Mass. 265; Oriental Bank v. Haskins, 3 Metc. 332. See, also, Green v. Tanner, 8 Metc. 411; Pope v. Wilson, 7 Ala. 690; Partelo v. Harris, 26 Conn. 480; Bancroft v. Blizzard, 13 Ohio, 30; Chouteau v. Sherman, 11 Mo. 385. There is no evidence from which the jury would be authorized in inferring that the deed was a voluntary conveyance. Harrison v. Phillips Academy, 12 Mass. 456, 463; Lerow v. Wilmarth, 9 Allen, 382, 386. There is no pretense of evidence tending to show any secret trust. The absence of the grantor from the trial, if unexplained, would not amount to any substantive evidence against her, or against her grantee.

FIELD, J. · The report finds that there was evidence tending to prove that the plaintiff, on February 21,

1879, recovered judgment in the superior court against the defendant, Eliza E. Goodell, in an action upon a promissory note dated April 1, 1869; that execution issued on the judgment, which the plaintiff levied upon the equity of redemption of this defendant in the pasture lot; that the execution was returned satisfied; that the levy was declared void; that on March 30, 1883, the plaintiff brought a writ of scire facias in the superior court, and that at the December term, 1884, this levy was set aside, and execution was ordered to issue for the "amount of the original judgment, without interest or costs, but to be suspended during the pendency of this suit, or until further order."

The levy of execution by Daniel M. Chamberlain, for the benefit of Andrew M. Chamberlain, upon this defendant's equity of redemption in the farm, and the sale of it to the plaintiff, were void for the same reason that the plaintiff's levy and sale were void, namely, because each sale was a sale on execution of the right to redeem a part only of the land included in an existing mortgage. See Cochran v. Goodelī, 131 Mass. 464; Chamberlain v. Perry, 138 Mass. 546; Pub. St. c. 172, § 53; Gen. St. c. 103, § 22.

The deed which the plaintiff seeks to have declared void was given by said Goodell to Daniel M. Chamberlain, the other defendant, on January 5, 1881. At this time the plaintiff's levy had not been declared void by the court, but the question of its validity was in controversy. The record of his suit then

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