Dikeman v. Ketchum

25 Conn. 363 | Conn. | 1856

Storrs, J.

The branch of the statute on which the plaintiff claimed a right to recover, subjects a debtor to the action provided in it, who “ shall refuse to pay any debt admitted by him to be due, or established by a valid judgment, while having moneys or estate, not exempt from execution, sufficient to pay said debt, concealed or withheld by him so that they can not be taken by legal process.” Sfat. 150, tit. i., § 283, ch. xv. On the facts found by the jury in this case, there was plainly no concealment of property by the defendant. There was, however, a withholding of the money in the hands of Winton, because, although it was deposited with him for the purpose of keeping good the previous tender of it to Marvin, it was under the immediate control of the defendant, who might have procured it, and appropriated it to the payment of the plaintiff’s debt. But a mere withholding of property is not sufficient to charge the debtor; it must be such a withholding that it can not be taken by legal process. In this case, if the plaintiff could not have attached specifically the money in Winton’s hands, he could have recovered the amount from Winton by process of foreign attachment, and in one of these modes made it available for the payment of his debt; and therefore it was not so withheld that it could not be taken by legal process. On these points the charge below was correct. It is claimed thatit was the duty of the defendant to procure the money from Winton, and pay it to the plaintiff, or offer it to the officer on his attachment. No such duty rested on the defendant; he had deposited it with Winton honestly, and for a lawful purpose, and was not liable for not withdrawing it, by which means that purpose might be frustrated. It was sufficient for him to inform the officer of its situation, so that it could be secured by attachment. If it had been any other property, situated at a distance, it would not have been incumbent on him to go after it and deliver it to the officer, but it would have been sufficient to gjve the latter such information that he could have attached it; and we do not perceive why the same rule does not apply to the present case.

A new trial is not advised.

In this opinion, the other judges, Waite and Hinman, concurred.

New trial not to be granted.