Hughes v. Lake

63 Miss. 552 | Miss. | 1886

Campbell, J.,

delivered the opinion of the court.

The first instruction asked by the plaintiff was properly refused, and was correctly modified by the court. It is true that one may be guilty, and sent to the penitentiary, under § 2814 of the code, without having entertained the fraudulent purpose necessary to sustain an attachment. Guilt, under § 2814, depends on the facts recited in it, and not upon intent or purpose. The object of the statute is to protect the confiding public from the victimization apt to result from depositing in an insolvent establishment, and it seeks to give protection by denouncing its penalty against him who receives a deposit, knowing, or having good reason to believe, that the establishment is insolvent, without informing the depositor of such condition. Receiving a deposit in such circumstances constitutes the crime, no matter what may be the purpose or hope of the person receiving it. He may think all will be well, and that his insolvent condition will never be known, and that he will achieve success by the use of his credit, and his purpose may be to act honestly and pay all depositors, but if he receives a deposit, knowing or having reason to believe thafc insolvency exists, he is guilty of a felony and cannot escape the just consequences of his crime because of his hopes and purposes. The legislature has determined that it is dangerous to the community for an insolvent bank to receive deposits, because of the probable result, and in order to prevent the evil has declared it felony for any person to receive deposits into an insolvent establishment without informing the depositor' of such condition. No professed or really existing honesty of purpose will relieve against the crime, which consists in doing what is forbidden, regardless of motive. If the bank is insolvent, dare not to receive a deposit from an unsuspecting person, but tell him of the insolvent condition, that he may foresee the evil and avoid it.

Was the bank insolvent ? Did the person receiving the deposit know it, or have good reason to believe it? If so, he is guilty under § 2814 of the code. But when the inquiry is whether the debt was fraudulently contracted within the meaning of the attachment law, reference must be had to the purpose to defraud, for to sustain an attachment on the ground that the debt was fraudulently contracted, it must be shown that the debtor intended to defraud the creditor. It is impossible to conceive of fraudulently contracting a debt without ascribing to the debtor the purpose to defraud. We do not say that in order to constitute a fraudulent contracting of a debt the debtor must at the time intend not to pay the debt as promised. That is not correct, for although the debtor may at the time intend to pay, and may think he will be able to do so, he may fraudulently contract the debt by representations and devices whereby to obtain credit.

None of the errors complained of are well taken, in our opinion. The court properly refused to instruct the jury to find for the plaintiff, and the verdict is not so manifestly wrong as to justify its being disturbed.

We confine our remarks to the errors particularly assigned and argued by counsel, and would not be understood as deciding any other question which the record may present.

Affirmed.