out authority to examine a prisoner, and if, on the preliminary inquiry, without subjecting him to oath, he should interrogate him, the answers to the interrogation are deemed involuntary: Kelly v. State, 72 Ala. 244. An inquest by a coroner has for its object not only the identification of the deceased person, and the manner or means of death, but, if death was caused by unlawful means or the unlawful act of another, the discovery of the person who employed the lawful means, or did the unlawful act. opens a similar, if not the identical, field of inquiry which is opened on the preliminary inquiry before the committing magistrate, and terminates in the issue of a warrant for the arrest of the person discovered to have caused the death. Under the English statutes of Philip & Mary, if a prisoner under examination of his own guilt before a committing magistrate was sworn, his statement was not evidence, for the reason that the statute intended to leave him free to admit or deny his guilt, and the oath deprived him of the freedom. In State v. Broughton, 7 Ired, 96, 45 Am. Dec. 507, Ruffin, C. J., expressed the opinion that evidence, the equivalent of a confession of guilt, given by a prisoner before a grand jury while investigating the crime, could not be used as evidence against him, for the reason that the oath deprived him of the freedom to admit or deny guilt, and because the proceeding before the grand jury was in its nature inquisitorial: See, also, State v. Matthews, 66 N. C. 106.

There is much of force in the observation of Professor Greenleaf: "It may, at first view, appear unreasonable to refuse evidence merely because it was made under oath, thus having in favor of its truth one of the highest sanctions known in the law. But it is to be observed that none but voluntary confessions are admissible; and that if to the perplexities and embarrassments of the prisoner's situation are added the danger of perjury, and the dread of additional penalties, the confession can scarcely be regarded as voluntary; but, on the contrary, it seems to be made under the very influences which the law is particularly solicitous to avoid": 1 Greenleaf on Evidence, 15th ed., sec. 225. The examination before the coroner was taken immediately after the death in the presence of all the excitement a homicide of this character naturally engenders. The prisoner, an object of suspicion, of which he is conscious, is called and examined as a witness under the obligation of an oath. He was not free to remain silent, for silence would have been regarded as confession; he was not free to refuse to answer questions propounded to him except upon the ground that the answers would tend to criminate him,

the answer magnifying whatever suspicion may have beclouded him, which naturally he would be solicitous to remove rather than to increase. The law does contemplate that parties accused or suspected of crime shall be compelled by its officers into such situations; and if compelled into them, their statements cannot be regarded as voluntary, and a basis on which verdicts may be safely rendered. If this course of procedure was tolerated, the inquest of the coroner would become an inquisition and every witness called before it compelled to betray himself. The statute provides for but one examination under oath of a party accused or suspected of crime, and that examination is not compulsory; it cannot be had except upon his own request; and it will seldom be had until there is some time for deliberation and opportunity to obtain legal advice. There was, in my opinion, error in the admission of the examination before the coroner.

There was no error in the admission of the evidence of the declarations of the defendant made about three weeks before the homicide, when warned that the deceased was approaching him, "that damned little Jackson had better not bother me." It had some tendency to show the animus of the defendant to the deceased; and its weight was for the consideration of the jury.

The majority of the court do not concur in the views expressed upon the first point considered, and the result of their opinion is, that the judgment must be affirmed.

COLEMAN, J. The court deems it unnecessary to consider any question other than the one relative to the admission of statements deposed to by the defendant upon his examination as a witness before the coroner's inquest. The record shows that the defendant was examined as a witness, before any charge had been preferred against him, and when he was not under arrest. The one question is, whether, as matter of law, the statements 8 of a witness must be held to be involuntary, merely because, when made, he was under oath, there being no accusation against him or other person. No authority has been cited in support of the proposition, and we are of opinion none can be found of recent adjudication. Even in those states where the rule prevails, that confessions of a party charged with an offense and under arrest are not admissible, it is held that his statements are admissible when made under oath as a witness, there being no charge against him and he not being in custody. All the authorities cited in the able opinion of the chief justice where the confessions were excluded were cases where the defendant was under arrest at the time they were made. The reasoning of the court in these cases

was to show that the custody of the party rendered the confessions involuntary. In this state, the decisions are uniform, that confessions made by a prisoner in custody and charged with an offense, although made to an officer in charge of the defendant, are not thereby conclusively rendered involuntary and inadmissible: Jackson v. State, 69 Ala. 249; Sands v. State, 80 Ala. 201; McQueen v. State, 94 Ala. 53. Much less can this court consistently declare that the statements of a witness, not accused and not under arrest, are conclusively involuntary, because made under the sanction of an oath. To so hold would place this court in antagonism to the other courts upon both propositions. "Formerly," says Mr. Roscoe in his work on Criminal Evidence, section 18, "it was doubted whether if a person who had given evidence before a coroner were afterward made the subject of a criminal charge, arising out of the same facts, his deposition could be given in evidence against him; but in several later cases they have been admitted" (citing the cases); and in the case of Reg. v. Biggdike (1868), Boyles, J., admitted in evidence a statement upon oath made by the prisoner voluntarily before the coroner, saying: "The authorities were in favor of the admissibility of the evidence, and he himself had no doubt on the subject": Roscoe's Criminal Evidence, sec. 18. The same rule is declared in 2 Wharton on Criminal Law, sec. 690, tit. "Confessions." In 4 American and English Encyclopedia of Law, page 180, the text is as follows: "The testimony of a witness before the coroner, such person not being at the time under arrest, or charged with the crime, may be used against him on a subsequent trial for the alleged murder of the deceased": Hendrickson v. People, 10 N. Y. 13; 61 Am. Dec. 721. See, also, 3 Russell on Crimes, 411, 414, and notes. By a statute of this state, a defendant, at his own request, is made a competent witness. He has the opportunity to explain or qualify any statement or confession he may have made. There is less reason now why such confessions may not be admitted, subject to the same restrictions as other confessions.

9

The weight of authority and sound principle favor the rule that the statements of a witness before a coroner, given in under oath, not charged with the offense and not under arrest, there being no constraint, are admissible in evidence against him.

On other questions, the court concurs in the conclusions of the chief justice.

Affirmed.

EVIDENCE-CONFESSIONS UNDER OATH.-A statement made by a party under oath before a grand jury concerning a crime then

under investigation, prior to his indictment or arrest therefor, and after he has been warned that he is under suspicion and that he need not testify and that he cannot be compelled to criminate himself, is voluntary and admissible against him on his subsequent trial for such crime: Jenkins v. State, 35 Fla. 737; 48 Am. St. Rep. 267. Answers of a witness at the coroner's inquest, before any criminal charge has been made or process issued against the witness, may be proved against him on his subsequent trial for having killed the deceased: Hendrickson v. People, 10 N. Y. 13; 61 Am. Dec. 721, and note. This subject is fully discussed in the extended note to State v. Clifford, 41 Am. St. Rep. 522.

HOMICIDE-EVIDENCE-THREATS OF DEFENDANT.-Former grudges and menaces may be proved against a prisoner charged with the murder of the person menaced: Dunn v. State, 2 Ark. 229; 35 Am. Dec. 54. The declaration of one indicted for homicide, that he would put fourteen buckshot into the deceased, being complete as to the purpose, is admissible in evidence, where there is nothing to indicate that it was subject to any qualification, though the witness cannot recollect all that was said: State v. Vallery, 47 La. Ann. 182; 49 Am. St. Rep. 363, and note.

METCALF V. ARNOLD.

[110 ALABAMA, 108.]

FRAUDULENT TRANSFER TO A CORPORATION.-If persons doing business as copartners and indebted as such form a corporation for the purpose of defrauding their creditors, and to that end convey all the property of the partnership to the corporation in consideration of its capital stock issued to them and members of their families, their judgment creditors may maintain a suit in equity to have the formation of the corporation declared fraudulent as against the complainants, and that they have a lien on the property so transferred for the satisfaction of their indebtedness.

Creditor's bill filed by the appellees for the benefit of themselves and other creditors of the Metcalf Drug Company. The averments of the bill were to the effect that certain persons named therein had been doing business under the firm name of H. B. Metcalf, and as such had created indebtedness which had become the basis of the judgments held by the complainants; that the members of the partnership conducted an extensive drug business, and had a large stock of goods and other assets subject to execution, and, with the intention of hindering, delaying, and defrauding complainants and their other creditors, attempted to form a corporation with a capital stock of eight thousand dollars; that the members of the partnership put into said corporation, as its only capital stock, the goods, wares, and other assets of the partnership and received in payment therefor stock of the corporation, and issued certificates for various amounts thereof in favor of the copartners and the members of their families; that

the property put into the corporation consisted of substantially all the property belonging to the firm and to the respective members thereof. The prayer of the bill was for an injunction to restrain the defendants from disposing, transferring, or encumbering any property referred to in the bill, and that a receiver be appointed of the property of the Metcalf Drug Company, and that the court decree that the formation of the corporation was fraudulent and void as to the complainants. A demurrer to the bill having been interposed, it was overruled by the court, and the defendants appealed.

Marks & Sayre and John G. Winter, for the appellant.

Graham & Steiner and Tompkins & Troy, contra.

184 BRICKELL, C. J. The demurrer was properly overruled. The bill is not, as is supposed by several of the causes of demurrer, a bill assailing collaterally the incorporation of the Metcalf Drug Company and seeking a forfeiture of its charter. It is a bill by judgment creditors, seeking the aid of a court of equity to remove obstacles and hindrances to the enforcement of their judgments, which the judgment debtors have fraudulently interposed. Whatever may be the character of the obstacle or hindrance; whatever may be the scheme or device to which the debtor resorts, it lies within the province of a court of equity to remove it. The formation of a corporation, investing it with the legal title to all the property and rights of property of the judgment debtor, and parceling out the stock of the corporation to the debtors and their wives, may be a new device for hindering, delaying, and defrauding creditors. The novelty of the device is not of consequence; the fraud of 185 its conception and consummation vitiates it, as fraud vitiates all transactions tainted with it. The bill does pray that the formation of the corporation be deemed fraudulent and void as to the complainants. Such a decree would be proper in granting to the complainants the full measure of relief to which they are entitled, if the allegations of the bill be true. But it would not work a forfeiture of the charter, or a dissolution of the corporation; it would simply be ancillary to the divestiture of the title to the property, liable to the debts of the complainants, with which it had been invested by the judgment debtors.

Let the decree of the chancellor be affirmed.

CORPORATION-FRAUDULENT TRANSFER TO BY PARTNERSHIP.-If the managing members of an embarrassed firm