Green v. Anderson & Hilzheim

| Miss. | Oct 15, 1860

Handy, J.,

delivered tbe opinion of tbe court:

This was an attachment for debt, sued out under the 5th section of Aft. 2 of the attachment law, Rev. Code of 1857, 372, upon the affidavit of the plaintiff that the defendant, Hilzheim, had theretofore disposed of his property or some part of it, and of the property of Anderson & Hilzheim or some part of it, for the purpose of defrauding his creditors, and the creditors of the firm of Hilzheim & Anderson. This affidavit was made and the attachment issued thereon, after the passage of the law in the Rev. Code above referred to. The defendant Hilzheim pleaded to the attachment, traversing the allegation on which it was issued as above stated.

In support of the issue, the plaintiff, on the trial, offered evidence of certain deeds of conveyance made by Hilzheim in April, 1857, which were alleged to be fraudulent as to his creditors. To this evidence ’the defendant objected, on the ground that it was not competent for the plaintiff to prove a fraudulent conveyance by the defendant, made before the Rev. Code, under which the attachment was issued, went into operation, and because the remedy provided in the Rev. Code did not apply to transactions which took place before the 1st November, 1857, when the Code took effect. The objection was sustained, and the evidence excluded; to which the plaintiff excepted.

The only question now presented is, whether the remedy provided in the Rev. Code is applicable to fraudulent dispositions of property made before the Code went into operation.

It is not questioned that the Legislature has the power to create new remedies and to make them applicable to causes of action existing before the passage of the new Act; but it is insisted that the statute in question does not, in terms, apply to antecedent transactions, and that the sound rule of construction in such cases is, not to give the statute a retroactive effect, because it would work injustice and oppression to the interests involved.

This is undoubtedly the true rule with reference to statutes impairing rights existing at the time of their passage; or creating new obligations, or imposing new duties, or attaching new disabilities in respect to transactions or considerations already past. Sedgwick on Stat. and Const. Law, 188. But it is different with regard to statutes relating merely to tbe remedy for wrongs or causes of action existing at tbe time of tbeir passage. Eor not only is it settled beyond question that tbe Legislature has the power to abolish old remedies for causes of action then existing and to prescribe new ones in the same cases, but that such statutes should be construed liberally to advance the remedy. Sedgwick, 860, and cases cited. There can be no injustice or oppression in this; as there would be in the case of a. statute which created a certain right or made an act a wrong, which were not of that character when the statute was passed.

In this case, the statute simply gives the remedy of attachment in a case to which it did not before apply, but in which the plaintiff had another remedy. 'The language is general and unrestricted, and it must be presumed that the Legislature intended to extend it to all cases, whether then existing or to arise thereafter, embraced within the terms prescribed; and that it was considered that the pre-existing remedy for the wrong was inadequate. The statute appears to be just and salutary, and to extend the remedy to a class of cases to which the preexisting remedies were frequently inadequate.

We think that the evidence wa^ improperly excluded upon the ground of objection taken to it; and the judgment must be reversed, and the cause remanded for a new trial.