Opinion of the Court.

words: "If this were the only objectionable language contained in the charge, we might hesitate in saying that it amounted to reversible error. It is not unusual to warn juries that they should be careful in giving effect to the testimony of accomplices; and, perhaps, a judge cannot be considered as going out of his province in giving a similar caution as to the testimony of the accused person. Still it must be remembered that men may testify truthfully, although their lives. hang in the balance, and that the law, in its wisdom, has provided that the accused shall have the right to testify in his own behalf. Such a privilege would be a vain one if the judge, to whose lightest word the jury, properly enough, give a great weight, should intimate that the dreadful condition in which the accused finds himself should deprive his testimony of probability. The wise and humane provision of the law is that the person charged shall, at his own request, but not otherwise, be a competent witness.' The policy of this enactment should not be defeated by hostile comments of the trial judge, whose duty it is to give reasonable effect and force to the law."

The import of these authorities is that the court is not at liberty to charge the jury directly or indirectly that the defendant is to be disbelieved because he is a defendant, for that would practically take away the benefit which the law grants when it gives him the privilege of being a witness. On the other hand, the court may, and sometimes ought, to remind the jury that interest creates a motive for false testimony; that the greater the interest the stronger is the temptation, and that the interest of the defendant in the result. of the trial is of a character possessed by no other witness, and is therefore a matter which may seriously affect the credence that shall be given to his testimony. The court should be impartial between the government and the defendant. On behalf of the defendant it is its duty to caution the jury not to convict upon the uncorroborated testimony of an accomplice. Indeed, according to some authorities, it should peremptorily instruct that no verdict of guilty can be founded on such uncorroborated testimony, and this because the induce

Opinion of the Court.

ments to falsehood on the part of an accomplice are so great. And if any other witness for the government is disclosed to have great feeling or large interest against the defendant, the court may, in the interests of justice, call the attention of the jury to the extent of that feeling or interest as affecting his credibility. In the same manner in behalf of the government, the court may charge the jury that the peculiar and deep interest which the defendant has in the result of the trial is a matter affecting his credibility, and to be carefully considered by them.

Tested by these rules we see in the instruction objected to nothing of which complaint can reasonably be made. In the first part it lays down a general rule, applicable to all circumstances, and then in the latter part simply calls attention to the fact that the defendant has a deep personal interest in the result of the suit, and that that should be considered by the jury. There is no declaration nor intimation that the defendant has been untruthful in his testimony. There is only a reference to the jury of the matter of credibility coupled with the declaration that interest in the result is a circumstance to be weighed in its determination. This clearly is unobjectionable.

These are the only matters which are open for consideration. It is true that error is alleged in overruling a motion for a new trial, but such a ruling is not reviewable in this court. Neither can we take the statements made by the defendant in his motion as evidence that the matters thus stated did, in fact, occur at the trial. In order to authenticate such facts a bill of exceptions is necessary.

The judgment is

Affirmed.

Statement of the Case.

SANFORD FORK AND TOOL COMPANY v. HOWE BROWN AND COMPANY, LIMITED.

APPEAL FROM THE

CIRCUIT COURT OF THE UNITED STATES FOR

THE DISTRICT OF INDIANA.

No. 190. Argued January 28, 1995. - Decided March 28, 1995.

A corporation, acting in good faith and without any purpose of defrauding its creditors, but with the sole object of continuing a business which promises to be successful, may give a mortgage to directors who have lent their credit to it, in order to induce a continuance of that credit, and to obtain renewals of maturing paper at a time when the corporation, although it may not be then in fact possessed of assets equal at cash prices to its indebtedness, is in fact a going concern, and is intending and is expecting to continue in business.

Under the circumstances detailed in the statement of facts and in the opinion of the court in this case, it is held, that the mortgage given by the Sanford Fork and Tool Company, by special direction of its stockholders, to its directors to secure them for indorsing and for continuing to indorse the paper of the company, is valid.

THIS was a suit commenced in the Circuit Court of the United States for the District of Indiana by the appellees, creditors of the Sanford Fork & Tool Company, to set aside a mortgage given by such company to secure certain of the directors and stockholders of the company for indorsements made by them of the company's paper. No proofs were taken, and the case was disposed of on the bill and answer, and a decree entered in favor of the plaintiffs, adjudging such mortgage invalid as against them. The facts disclosed by the pleadings are as follows: The Sanford Fork & Tool Company was a corporation organized under the laws of the State of Indiana, doing business at the city of Terre Haute in that State. Its capital stock at first was one hundred thousand dollars, but was afterwards increased to one hundred and fifty thousand dollars. It commenced business in 1888 and continued as a going concern for about eighteen months and up to May 13, 1890, at which time it failed and its property passed

Statement of the Case.

into the possession of one of the defendants, John W. Davis, as receiver. The plaintiffs were creditors of the company, whose claims all accrued prior to March 17, 1890, at which time the mortgage complained of was executed. The defendants McKeen, Hulman, Nixon, Minshall, Kidder, and Mayer were each stockholders, and the first five constituted the board of directors of the company. Early in its history, and on July 2, 1888, the company had executed a deed of trust to one Deming, as trustee, to secure an issue then made of $50,000 of its ten-year negotiable bonds. This trust deed conveyed. as security the manufacturing plant of the corporation — a tract of about three acres in the city of Terre Haute, with the buildings and appurtenances.

Being a comparatively new enterprise the company, in addition to the means derived from its capital stock and its bonded indebtedness, required large sums of money to enable it to successfully carry on and develop its business, and to obtain this money it executed during the fall and winter of 1889-1890 and between September 18, 1889, and March 3, 1890, its ten promissory notes, amounting in the aggregate to the sum of sixty-nine thousand dollars, which notes were indorsed by the six parties named above as directors and stockholders, the notes being severally as follows:

1. Executed to the Terre Haute Savings Bank, for $5000, dated September 18, 1889, due in five months, and indorsed by McKeen, Hulman, Kidder and Nixon.

2. To the same bank, same date, due in six months, for the same amount and indorsed by the same parties.

3. Executed to Nixon, dated December 14, 1889, due March 15, 1890, for $15,000, indorsed by Nixon, Hulman, and Kidder, and held by the Vigo County National Bank.

4. Executed to Nixon, dated January 21, 1890, due in sixty days, for $5000, indorsed by Nixon, McKeen, Hulman, and Kidder, and held by the Terre Haute Savings Bank.

5. Executed to Minshall, dated January 21, 1890, due in thirty days, for $4000, indorsed by Minshall, Hulman, McKeen, and Kidder, and held by the First National Bank of Brazil.

6. Executed January 30, 1890, to Nixon, due in ninety days,

Statement of the Case.

for $15,000, indorsed by Nixon, Kidder, McKeen, Mayer, and Hulman, and held by the Vigo County National Bank.

7. Executed February 5, 1890, to Nixon, due in sixty days, for $5000, and indorsed by Nixon, Minshall, McKeen, Hulman, and Kidder, and held by the Vigo County National Bank.

8. Executed February 2, 1890, to Nixon, due in thirty days, for $5000, indorsed by Nixon, Minshall, McKeen, Hulman, and Kidder, and held by the Vigo County National Bank.

9. Executed March 3, 1890, to Nixon, due in sixty days, for $5000, indorsed by Nixon, Kidder, Hulman, Minshall, and McKeen, and held by the Terre Haute Savings Bank.

10. Executed March 3, 1890, to the Terre Haute Savings Bank, due in sixty days, for $5000, indorsed by Nixon, Kidder, Hulman, Minshall, and McKeen.

All the money received from these notes was expended upon and went directly into the property and material of the Tool Company. At the time these directors and stockholders. indorsed these notes the Tool Company was a going concern, in full operation, with property and means "amply sufficient to pay all of its indebtedness if its property was worth what it had cost in cash." They believed that such property was worth what it had cost in cash, that the corporation was "solvent and capable of becoming an independent and profitable manufacturing institution as soon as it could win its way to a favorable market for its manufactured products." As these notes thus indorsed began to mature the directors found that the company was unable to pay them, and required a renewal or an extension. Thereupon, on March 1, 1890, they called a special meeting of the stockholders, which was held on March 15. At this meeting, out of a total of three thousand shares, two thousand two hundred and fifty were represented, and a resolution was passed authorizing the directors to execute a mortgage or mortgages upon all or any part of the property of the corporation, to secure any new indebtedness that might be incurred, or the renewal and extension of any present indebtedness or liability of the corporation. Thereupon, the directors having taken suitable action, the mortgage in controversy was executed conveying to Buena V.