Quimby v. Carter

20 Me. 218 | Me. | 1841

The opinion of the Court was by

Shepley J.

The right of the plaintiff to maintain this suit depends upon the construction of the thirteenth section of the statute c. 195. By that provision the fraudulent concealment or transfer must be designed to secure or conceal the property from creditors, “ to prevent the same from attachment or execution.” And the person, other than the debtor, who is made liable, must knowingly aid or assist in effecting it. The statute contemplates, that the creditors will be actually defeated in the recovery of their debts wholly or partially, for one cannot recover more than double the amount of his just debt remaining uncollected. And the plaintiff, to entitle him to recover, must not only prove such concealment or transfer, but that he has a just debt or demand remaining unpaid. It is said that this does not prove any special injury to himself, for he may yet have the means of obtaining payment. He must however prove facts before he can recover, which the law determines to be essentially detrimental to his interest, viz. that he has a just debt or demand, that his debtor has fraudulently concealed or transferred property liable to be taken by attachment or seized on execution to satisfy it, and that the person sued has knowingly aided or assisted the debtor to defeat his rights as a creditor. His right of recovery is limited to double the amount of the property concealed or transferred, if it be less than the amount of the debt; or to double the amount of his debt, if that be less than the value of the property concealed or transferred. The mere fact that he may recover double the amount does not of itself determine the statute to be penal. It is supposed, that the creditor may, notwithstanding a recovery and satisfaction, still proceed and collect his demand of his debtor, and that the statute must therefore be highly penal. When however he has so recovered and the judgment has been satisfied, the debt is regarded as extinguished in law pro tanto, although the payment may not have been made by the debtor himself. The recovery was had on account of the debt, and he has received money because he was a creditor. Examples of this kind are found when a creditor recovers damages against a sheriff for misconduct equal to the whole amount of his debt, and receives satisfaction. The provision in the revised statutes, c. 148, <§> 34, that the payment of the judgment shall be also a satisfaction of the original debt, was probably regarded as a declaration of the legal effect of such a recovery and satisfaction. If this be a just exposition of the statute, it bears little resemblance to that provision on which the ease of Mansfield v. Ward, 16 Maine R. 433, was decided. The principle of that decision was, that the statute must be regarded as penal, because the plaintiff was not obliged to prove any injury to entitle him to recover.' Nor was he obliged to prove such facts as the law would regard as injurious.

The jury have found the concealment since the enactment of the statute; concluding, it would seem, that the deed was executed on the day of acknowledgement; although it bears date long before. It may have been the more general practice for the Court to instruct the jury to find single damages to be doubled by the Court, when the statute requires it. In Cross v. United States, 1 Gall. 26, it is said, that when damages are demanded, and the statute gives double damages, they may be assessed either by the Court or jury. And in Warren v. Doolittle, 5 Cow. 678, the Chancellor says, “in principle it is wholly immaterial whether it be done by the Court or jury.” The assessment of the double damages by the jury, can afford no just ground for a new trial.

Exceptions overruled.