Bell v. Glazier

13 N.H. 134 | Superior Court of New Hampshire | 1842

Woods, J.

This case raises a question of costs only. The trustee has been already discharged from all other liability. The plaintiff claims to recover against the trustee his reasonable costs of this litigation with him, in contravention of the general rule which allows costs to the trustee, in the event of his discharge. The claim is made in virtue of the provisions of section 9 of the act entitled, “ an act making further provisions in relation to the trustees of debtors,” passed June 30th, 1841. The language of that section is as follows, viz : “ In all cases where it shall be made to appear to the court that any person summoned as trustee has received the property of the principal debtor, or holds any bill of sale or other conveyance from him, with intent to aid him in defeating or delaying any of his creditors, costs shall be taxed against such trustee. ”

The plaintiff contends, that although the trustee in his disclosure denies all intention of aiding the principal defendant in delaying or defeating his creditors, yet inasmuch as such was the necessary effect of his acts, the law conclusively presumes the intention, and the court are bound to pronounce judgment accordingly.

Waiving all enquiry as to the soundness of the position assumed, we are all of opinion that the facts disclosed do not bring this case within the purview of the provisions of the section of the act referred to. The act complained of had transpired before the date of the law. The costs imposed are given as a penalty, or rather in the nature of a penalty for the commission of a prohibited and illegal act. And it is not to be presumed that the legislature would purpose imposing a penalty, or costs in the nature of a penalty, for transactions already past at the date of the law imposing the penalty. Such legislation could not, we think, be regarded as wise, judicious, or politic, if it should, upon investigation, be found to be warranted by law. Indeed, I think it might well be said to be at war with every principle of reason and justice, if not with the whole course of legislation in this state. And we should not readily give to this act such a construction as would give it the effect of imposing a penalty, or its equivalent, by way of costs, for acts already past at the date of its passage, unless it should be found that the language of the act itself imperiously demanded it.

But we think that no such construction is required by the language of the section under consideration. It may well be doubted whether that is the most obvious construction of which it is susceptible. It was only intended, as we hold, to apply to and affect cases arising subsequently to the passage of the act itself. In order that the case can be regarded as coming within the provisions of the section in question, it, must be made to appear that the trustee has had possession of some portion of the property of the principal debtor, or has held some bill of sale, or other conveyance thereof, at some period at least as recent as the date of the act under consideration, accompanied with the purpose of aiding him in the fraudulent purpose of delaying or defrauding some of his creditors.

It is not necessary, in this case, to determine what other limits, if any, are prescribed by the statute to the period within which the fraudulent transactions of the trustee must occur, in order to warrant the imposition of costs. Nor is it necessary to determine the question made at the argument, whether the conveyance of the land from Parker, or the possession of the notes of Perkins, was holden by the trustee under circumstances so conclusively evidencing the fraudulent intention of aiding the principal debtor in delaying and defrauding his creditors, as would warrant the same result.

It is sufficient, that the transactions relied upon as the foundation of the motion for the allowance of costs, transpired at a period prior to the passage of the act upon the provisions of which the plaintiff rests his claim for costs.

The plaintiff’s motion for costs must, therefore, be denied.