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it to the payment of their claims. They must pursue some one of the methods authorized by law. "The expression, that a fraudulent transfer is void as against creditors simply means that the rights of creditors as such are not, with respect to the property, affected by such transfer. But that they may, notwithstanding the transfer, avail themselves of all the remedies for collecting their debts out of the property or its avails which the law has provided in favor of creditors, and that in pursuing those remedies they may treat the property as though the transfer had not been made, that is, as the property of the debtor." Bump on Fraud. Conv. (2d ed.), p. 453. But, as already observed, a creditor is not, in our judgment, of necessity required to bring suit and obtain a specific lien by attachment or execution. The law gives him other remedies, among which is that of taking a mortgage upon the property of his debtor; and if instead of attaching he induces the debtor to execute such a mortgage for the purposes of securing his antecedent and bona fide debt, he is proceeding in one of the ways authorized by law. While his mortgage is not technically a process, it is an instrument which upon failure to comply with its terms confers authority upon him to seize the property and without formal judicial proceedings to ultimately appropriate it or its proceeds to the satisfaction of his debt. We discover no reason upon principle why his specific lien thus obtained should not be given the same force and effect as a specific lien obtained by attachment. Brown v. Webb, 20 Ohio St.

389; Clute v. Steele, 6 Nev. 335.

In considering the question of a subsequent sale by the vendor, this court held that knowledge by the subsequent purchaser at the time of his purchase of the existence of a prior sale in good faith binding as between the vendor and vendee, where possession was temporarily left with the vendor, rendered the second sale subject to the rights of the prior purchaser. The view thus announced was, however, predicated upon a provision of the statute of frauds subsequent to that under consideration which deals only with purchasers

and limits the benefit of the statute to purchasers in good faith and for valuable consideration, and which expressly excepts a purchaser with notice of the fraudulent intent of the vendor. McKee v. Bassick M. Co., 8 Colo. 392.

Counsel for appellant discuss Steiger's rights as if he were an absolute purchaser and therefore within the purview of the last foregoing decision. To this view we respond: First, that there is no provision of the statute relating to creditors corresponding to the one upon which that decision was based: Second, the term "good faith," employed in said section 2027, is limited to subsequent purchasers. Undoubtedly the creditor's debt must itself be bona fide; but when the good faith and validity of the debt are unquestioned, the conclusive presumption of fraud as to creditors attaches to a sale unaccompanied by immediate possession. And third, a mortgage of personal property regularly executed is defined to be “A conditional sale of it (the property) as security for the payment of a debt or the performance of some other obligation." Jones on Chat. Mort. (2d. ed.), sec. 1. The phrase "subsequent purchasers," as used in the statute under consideration, does not include a bona fide creditor who by chattel mortgage obtains a specific lien upon property for the purpose of securing payment of his antecedent debt.

It is not necessary to consider or rely upon the first mortgage described in the record before us; for since the attempted sale to Allen was unaccompanied by delivery, Steiger's second mortgage gave him a superior lien upon the property; and as he acted with sufficient diligence in attempting to reduce the same to possession on maturity of the mortgage the taking of the piano by Allen was as against him unlawful. The judgment of the court below is affirmed.

Affirmed.

MR. JUSTICE ELLIOTT, having as district judge heard the cause in the court below, did not participate in this decision.

O'BRIEN, PLAINTIFF IN ERROR, V. THE PEOPLE, ETC.,
DEFENDANTS IN ERROR.

1. CRIMINAL Trial-Right of Defendant.—It is the right and privi-
lege of a defendant, put in jeopardy upon a charge of felony, to
have the trial conducted with all due care and circumspection, and
to have the requirements of the law faithfully pursued and firmly
upheld in all substantial particulars.

2. ABSENCE of Judge DURING THE TRIAL.-Where in the trial of a fel-
ony case, the judge, against the objections of defendant, was absent
from the presence and hearing of the jury, witness and counsel,
while a certain witness was examined and while material evidence
was taken, held, that such absence was error for which a new trial
must be granted.
PER ELLIOTT, J.-Every criminal trial must take place in open court
in the presence of the judge as well as of the jury. The presence
of the judge is essential to the organization of the court. The
arguments of counsel as well as the taking of the evidence are
a part of the trial; and the judge cannot properly absent himself
while such proceedings are being carried on. It is his duty to be
present to superintend the proceedings, uphold the majesty of the
law, and thus give protection and security to the parties interested
or concerned in the trial, and, also, to see to it that counsel, in their
arguments, do not travel outside the record, or transcend the limits
of legitimate discussion.

Error to Criminal Court of Arapahoe County.

INDICTMENT and conviction for seduction under promise of marriage.

Mr. H. E. LUTHE, for plaintiff in error.

Mr. S. W. JONES, attorney-general, and Mr. H. RIDDELL, for defendants in error.

MR. JUSTICE ELLIOTT delivered the opinion of the court.

Plaintiff in error was defendant below. He was charged with an offense expressly designated by the statute as a felVOL. XVII.-36

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ony and made punishable on conviction by imprisonment in the penitentiary for a term not exceeding ten years. Session Laws 1885, p. 166; Mills' An. Stats., sec. 1325.

Being put in jeopardy for such an offense it was the right and privilege of defendant to have the trial conducted with all due care and circumspection, and to have the requirements of the law faithfully pursued and firmly upheld in all substantial particulars.

Among other things, the following proceedings duly authenticated by the bill of exceptions are assigned for error:

1. During the progress of the trial a certain female witness being sick, the court ordered that her testimony be taken at her residence before the jury. The defendant demanded that the court also attend said jury; but the court refused so to do; and said witness was sworn and gave material testimony in the presence of the jury at her residence in West Denver, the court not being present and not presiding.

2. It affirmatively appears by the bill of exceptions that after the evidence had closed, and during the time while the district attorney addressed the jury and argued the cause on behalf of the People against said defendant, the court was absent from the court room and out of sight and hearing of said jury and counsel and out of the hearing of said argument during the entire argument for at least half an hour, and that the defendant desired to object to, and arrest, certain statements and to correct certain misstatements of the law and the evidence made by the district attorney in his said argument; and further, that the defendant then and there excepted to the absence of the court as aforesaid, and prayed that said absence be made a matter of record, and it was accordingly so done.

The foregoing assignments may be considered together. Under our judicial system every criminal trial must take place in open court. court. It must be conducted in the presence of the judge as well as of the jury. The judge must be present to superintend the proceedings, uphold the majesty of the law, and thus give protection and security to all parties

The ar

interested or concerned in the result of the trial. guments of counsel, as well as the taking of the evidence, are a part of the trial; and the judge cannot properly absent himself while such proceedings are being carried on; it is his duty to be present and see to it that counsel in their arguments do not travel outside the record, nor transcend the limits of legitimate discussion. Moreover, the presence of the judge is essential to the organization of a court for the trial of felony cases. If the judge is absent while substantial proceedings, such as the taking of evidence or the argument of counsel, are being carried on in the presence of the trial jury, such proceedings must be regarded as coram non judice; and if, as in this case, it affirmatively appears by the bill of exceptions that the judge was absent against the objections of the defendant, his absence must be held ground for reversal. 1 Bishop Cr. Pro. 957; 1 Thompson on Trials, secs. 211, 212, 955, et seq.; Hayes v. State, 58 Ga. 35, 49; Haverly Im M. Co. v. Howcutt, 6 Colo. 574; Cook v. Doud, 14 Colo. 483; De Votie v. Mc Geer, 14 Colo. 577; Brownlee v. Hewitt, 1 Mo. Ct. of Appeals, 360; State v. Smith, 49 Conn. 376; Davis v. Wilson, 65 Ills. 525; Britton v. Fox, 39 Ind. 369.

We must not be understood as intimating any substantial part of a trial for felony can properly be carried on in the absence of the presiding judge, even by the consent of the defendant. Such a case is not presented by this record; nor is this a case of absence from the bench, merely, without being out of the presence and hearing of the jury, counsel or witness; it is a case of entire absence from the presence and hearing of important proceedings for considerable spaces of time, against the objection of defendant made in each instance at a time when such absence might have been avoided.

The constitution guarantees that every person accused of crime shall have a public and impartial trial, and that the accused shall have the right to appear and defend in person and by counsel. These provisions imply that the trial shall be conducted in open court and under the protection of the court. Of what value are such guaranties if they may be

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