Fuller v. Fuller, 4 Vt. 123

Fuller v. Fuller

4 Vt. 123 | Vt. | 1832

Baylies. J.,

delivered the opinion of the Court. — I shall first ^ 9 - _ . consider whether there be sufficient averments in the declaration, that there were carding machines, picking machines, and clothier’s tools in and upon the premises conveyed, and of their number and value, and of the amount of the mortgage upon the premises conveyed.

The declaration says, “Whereas, on the said 23d. day of May, A. D. 1827, the said Ezra Sherman, jun. owned and possessed the following described lands and tenements, and goods and chattels, lying and being in Montgomery aforesaid, to wit,” [here the lands are described,] “ together with the carding machines and “ picking machines, with the clothier’s tools, in and upon said “ premises, subject to a mortgage incumbrance upon part “ or all of said premises to one Martin D. Follet, jr. And the “ said Austin Fuller, in fact, says,that the said estate and interest “ of the said Ezra, in and to the premises aforesaid, and the goods “ and chattsls aforesaid,on the 23d. May, 1827, was of great value, “ to wit, nine hundred dollars.”

It is not expressly averred in the declaration that there were carding machines, picking machines, and clothier’s tools in and upon the premises ; nor is their number and value, unconnected ■with the land, any where alleged-; nor is the amount-of the mortgage upon the premises stated. These certainly are defects in the declaration ; but we consider they are cured by the verdict.—9 Mass. Rep. 495 ; 10 Mass. Rep. 316 ; 11 Johns. Rep. 141 ; 15 Johns. Rep. 121.

As to the third cause of arrest, — it is not necessary that personal .property should be delivered by the vendor to the vendee at the time of sale, or afterwards, to make it fraudulent within the statute. If not delivered, it is a mark, that the sale was fraudulent. Twine’s case was decided on the statute of 13 Eliz.e. 5 ; and ■the court say, “ the donor continued in possession, and used the goods as his own ; and by means thereof traded with others, and defrauded and deceived them.” This was considered a sign, or mark of fraud in the sale of the goods.-(Rob. onconvey anees, 545.)

As to the fourth cause of arrest, that the declaration does not conclude against the form of the statute, — If an offence, which was not an offence at common law, be created by statute, and an •action be given to collect a penalty, or forfeiture, for such offence, the plaintiff in an action for the penalty or forfeiture, must, in his declaration, either at the close, or in some other part, allege the facts constituting the offence,to be against the form of the statute, *130The case of Lee vs. Clark, in error from C. B. 2 East, 333, wag an action of debt for a penalty on the game laws. The deelara-ration stated, “ that Daniel Lee, (plaintiff in error,) within the space of six calender months, next before the commencement of this suit, to wit, on the 21st of January, 1801, at, &tc., unlawfully used a certain engine, called a snare, to kill and destroy the game of this kingdom ; he the said Daniel, not being then and there qualified by the laws of this realm, nor having any lawful authority so to doy whereby, and by force of the statute in that case made and provided, an action hath accrued to John Clark, (defendant iu error,) to demand and have of and from the said Daniel, five pounds. — Plea, nil debet.” That action was brought to recover a penalty annexed to an offence created by statutes, and not existing at common law. Lord Ellenborough, C. J., says, “ I cannot so well dispose of the first error, that the offence lor which the penalty is given is not alleged to be against the form of the statute ; rt' being clear that this was no offence at common law,and only made so by statute.” “In an action for a statute penalty,” (annexed to an offence created by statute,) “ by a common informer, as well as in proceedings by indictment or information, it has been invariably holden that the fact must be alleged to be done against the form of the statute.” In this case the declaration had not these words, and the court adjudged it insufficient. But for an offence at common law, where there is- a statute prohibiting the same offence, and annexing a penalty or forfeiture, recoverable by an action of the case, or an action of debt, to be brought on the statute, it is not necessary for the plaintiff to allege in his declaration, that the facts constituting the offence were done against the form of the statute. But if the plaintiff seek to recover such penalty or forfeiture, he must allege, that he demands it by force of the statute, and bring the facts constituting the offence clearly within the statute. And if the plaintiff allege the facts to be against the form of the statute, it will not injure the declaration ; but it is not necessary to insert these words, where the offence exists at common law. Lord Mansfield says, “ that the principles and rules of the common law, as now universally known and understood, are so strong against fraud in every shape, that the common law was calculated to attain every end and purpose of the statute of 13 Eliz. c. 5, and 27 Eliz. c. 4. (Cowper, 434.J I apprehend it is- because fraud is an offence at common law, that the declarations on the statute of 13 Eliz. c. 5, do not contain the allegation, that the facts, constituting the offence, are against the *131the form of the statute. These words are omitted in all the dec- . , . 7, larations, which 1 have seen on this statute. — (7 rventwortnrs 'plead. 223, Declaration in debt, qui tam, on a fraudulent bill of sale of goods. — lb. 338-9, Declaration, two counts, qui tam, by a party grieved against defendant for a fraudulent judgement, suffered by one, and recovered by the other, to defraud the plaintiff.)

The facts constituting an offence within the statute of 13 Eliz. c. 5, would constitute an offence within our statute, ch. 32, s. 7. And a declaration on this statute need not contain the allegation, that the facts are against the form of the statute, any more than a declaration on the 13 Eliz. c. 5. Hence, I conclude, that the omission of these words in the declaration before us is no error, and ^

The judgement of the county court must be affirmed, with additional costs.