| Me. | Jun 4, 1895
The plaintiff in this action was the execution creditor and the defendant in interest, in the replevin suit, Weeks v Hill, ante, 111, and the case is an outgrowth of the same transaction.
This suit is based on section 12 of chapter 137, laws of 1887, relating to the disclosure of execution debtors. That section provides that if the debtor " discloses personal estate liable to be seized on execution, the petitioner shall have a lien on it, or so much of it as the magistrate in his record judges necessary, for thirty days ; and if the debtor transfers, conceals, or otherwise disposes of it within said time, or suffers it to be done, or refuses to surrender on demand,.......the petitioner may recover, in an action on the case against him, or any person fraudulently aiding in such transfer, concealment or disposal, double the amount due on said execution.”
It is alleged in the plaintiff’s declaration that Alice Weeks, the execution debtor in the replevin suit, and the wife of this defendant, pursuant to a citation for that purpose, appeared before a disclosure commissioner on the first day of June, 1893, and "disclosed that she was the owner of one top-carriage, valued at fifty dollars, and five cows, valued at two hundred dollars, all being then in the possession of this defendant, Frank N. Weeks; whereupon the disclosure commissioner "decreed that said petitioner have a lien for thirty days on so much of said property as was not exempt from attachment and seizure on execution.” It is further alleged that the property" thus disclosed was duly demanded of the defendant by the officer having the execution in favor of the plaintiff, but that the defendant "then
There is no evidence in this case nor in the report' of the replevin suit, which is made a part of this case, aside from the recital in the certificate of the disclosure commissioner, which gives any support to the averment that Alice Weeks disclosed that she " was the owner” of the cows and carriage in question. She "disclosed” that some eight months prior to that time she gave her husband the sum of three hundred dollars, and it appears that he purchased five cows with the money. ' She uniformly disclaimed any ownership in the cows. There is no evidence whatever, other than the commissioner’s certificate, respecting the title to the carriage. The defendant appears to have asserted the right to hold it, and there is no evidence that he did not own it. It also appears that four of the cows in the defendant’s possession had been seized on this same execution as the property of Alice Weeks, some two months before, and replevied b}' the defendant as above stated.
But it must be remembered that this is an action, not against the execution debtor who is alleged to have disclosed the property, but against the defendant to recover " double the amount of the execution,” presumably for " fraudulently aiding in the transfer, concealment, or disposal” of the property within thirty days after the disclosure, and while the lien was decreed to continue. The statute invoked is penal as well as remedial, and is not to be extended by construction beyond the reasonable meaning of its terms. The rule of strict construction is applicable ; and this signifies that an act of a penal nature "is not to be regarded as including anything which is not within its letter as well as its spirit, which is not clearly and intelligibly described in the very words of the statute as well as manifestly intended
This statute makes a clear distinction between the liability of the debtor and that of a third person. The petitioner may recover the penalty of the" debtor himself if "he transfers, conceals, or otherwise disposes of the property within thirty days,” or "refuses to surrender it on demand,” &c., but he can only recover the penalty of a third person for " fraudulently aiding in such transfer, concealment or disposal.” Such third person is not made liable for simply " refusing to surrender ” property which he claims as his own, which has not been "transferred, concealed or disposed of” during this period of thirty days, but has been exposed to seizure on execution during that period, and for eight months prior to that time.
It - is not contended that the situation of this property was changed in the slightest degree during the thirty days after disclosure. There is no averment in the declaration of any specific act of the defendant whereby the debtor was " fraudulently aided” in transferring, concealing or disposing of the property during that period or at' any other time ; nor is there even a general allegation that the defendant" fraudulently aided ” in the transfer, concealment or disposal of the property at any time. There are no proper averments in the declaration to bring the case within the terms of the statute. It follows that the action must fail for want of both allegation and evidence.
Plaintiff nonsuit.