Cowles v. Day

30 Conn. 406 | Conn. | 1862

Hinman, C. J.

In this action the plaintiffs, who are creditors of the defendant, seek to recover damages against him for having fraudulently assigned and conveyed away and concealed his property beyond the reach of legal process. It is, of course, an action which could not have been sustained at common law, but was first given by statute as a remedy against the frauds which it was anticipated would follow the enactment of the law abolishing imprisonment for debt.

The plaintiffs made out a very clear prima facie case under the statute. But the defendant claimed that, as he had become insolvent, and a trustee of all his property liable to attachment had been appointed, who took the title to all such property; and the defendant had also, befoi’e the service of this process, made an assignment of his property for the benefit of his creditors; and as he had been examined before the court of probate as to whether he had any property belonging to the assigned estate in .his possession or under his control, and the court did not find that he had any; and as, moreover, the defendant before the bringing of this suit had in regular form taken the poor debtor’s oath, the plaintiffs could not recover in this action, or if they could recover it could only be for nominal damages.

The statute, as it now stands in the revision of 1854, p. 150, enacts that “ whenever any person shall be guilty of fraud in contracting a debt, or shall conceal, remove, withhold, assign or convey away his estate, moneys, goods, chattels, or choses in action, with intent to prevent the same from being taken by legal process, or shall refuse to pay any debt admitted by him or established by a valid judgment, while having moneys or estate not exempt from execution sufficient to discharge the same concealed or withheld by him so that the same can not be taken by legal process, or shall refuse to disclose his rights of action with intent to prevent the same from being taken by foreign attachment, any creditor aggrieved thereby may institute an action on the case against such person, setting forth his debt in the declaration, and also setting forth particularly such fraudulent act or acts, and have process of attachment and execution against the body of the defendant, to be proceeded with in all respects as in other actions of tort.”

The language of this statute is still such as to l'ender the precise object and meaning of it somewhat uncertain, though it is much better expressed as embodied in the late revision than it was when first enacted. If we look back however to the law which secured to all creditors the right to enforce the collection of their debts by the imprisonment of the bodies of their- debtors, and to the fact that this law, which was thought to be oppressive in respect to honest though unfortunate debtors, was repealed, not only at the same time, but by the very act which in a proviso first enacted the substance of this statute, we think its meaning will be made sufficiently clear. The legislature meant to abolish the law authorizing the imprisonment of honest debtors, but did not intend to abolish it in respect to that dishonest class of debtors who were guilty of fraud in contracting their debts, or who concealed or conveyed away their property so that it could not be reached by the ordinary process of attachment. To secure this object it was deemed necessary to authorize, and thus establish, a new form of action, which is called in the present statute an action on the case. The act provides that the creditor’s debt shall be set forth in the declaration, and also the fraudulent act or acts which are relied upon in respect to it, and then it is enacted that, on such a declaration, the party shall have process and execution against the body of the defendant, to be proceeded with in all respects as in other actions of tort. It is therefore a clearly marked action in tort irrespective of the statute. And fraud is, in one sense, the gist of it, as was held in Armstrong v. Ayres, 19 Conn., 540. But it was doubtless considered proper, if not necessary, to make it so expressly, in order to secure to the plaintiff the right to enforce payment of the debt which had been fraudulently contracted, or the payment of which had been fraudulently evaded, by the imprisonment of the delinquent’s body. In view of these considerations we think it clear that none of the matters set up by the defendant are any defense to the action; and it appears to us, moreover, that the plaintiffs were at least entitled to recover the full amount of their debt against the defendant. The utter insolvency of the defendant, which indeed may have been induced by the fraudulent conduct which is complained of and is the ground of recovery in this action, so far from being any ground of defense, either to the action itself or in respect to the damages, is the principal reason why it is desirable that his body should be holden to respond to the full amount at least of the debt, the payment of which he fraudulently attempted to evade. It is true the gist of the action is fraud. But it is a fraud in respect to a debt, either in contracting it, or in disposing of and withholding the means of paying it. And the remedy which the statute intended to leave to the party thus defrauded, was the right to enforce the payment of his debt thus situated by means of the imprisonment of the fraudulent debtor’s body. Unless then he can recover at least the full amount of his debt he fails to obtain the full benefit which the statute intended to give him. Imprisonment for mere indebtedness was abolished. But for indebtedness accompanied by the frauds, or some of them, which are mentioned in the statute, it was intended that it should be retained. And the creditor was to have the benefit of this remedy by means of this action upon the case, in which both the debt and the fraudulent act or acts which by the statute were to deprive the fraudulent debtor of the benefit of the act abolishing imprisonment for debt, were to be set forth. As they were both required to be set forth, so it is necessary to prove them both in order to secure the benefit of an execution against the body as well as agaiitst the property of the debtor. The fraud irrespective of the debt is no injury to any one pecuniarily ; but accompanied by the debt it is an injuiy, since it deprives the party of the means of obtaining payment by an attachment of the property secreted or removed. And the remedy for this injury is a recovery in this action, by means of which the person of the debtor can be held until he satisfies the judgment which is recovered against him. It follows then that he is entitled to recover, as has already been said, at least the amount of the debt. It is not necessary to consider how much more, if any thing, he might be entitled to recover, as from the verdict it would appear that the plaintiffs recovered considerably less than they were entitled to in this case ; but of this of course the defendants can not complain.

We have dwelt longer upon the subject of damages than the importance of the case would perhaps require, because the counsel for both parties seemed to suppose that the debt was not the rule of damages in this action; whereas we are of opinion that, if it is not strictly the rule of damages, it is cer_ tainly the principal item which is to be recovered, and in cases unaccompanied by any other ground for recovery of damages, and not calling for vindictive or exemplary damages, we think the debt, with such interest, as may have accrued upon it, should ordinarily be the rule of damages in the action.

We do not advise a new trial.

In this opinion the other judges concurred.