Baxter v. Nash

72 N.W. 799, 70 Minn. 20, 1897 Minn. LEXIS 5

Opinion

START, C. J.

This action, and the one entitled Baxter v. Coughlin, supra, page 1, are one and the same. This is an appeal from an order dissolving an attachment issued therein upon the sole ground that “the plaintiff’s debt was fraudulently contracted.” The character of the plaintiff’s alleged cause of action is discussed and determined in the decision referred to.

The language of the statute (G. S. 1894, § 5289), allowing an attachment where “the plaintiff’s debt was fraudulently contracted,” is to be liberally construed, so as to include debts fraudulently created or incurred. Cole v. Aune, 40 Minn. 80, 41 N. W. 934. The plaintiff’s cause of action, however, does not fall within even this liberal construction, for it is founded solely in tort. It did not grow directly or indirectly out of any contractual relations between the parties hereto, but out of a violation by the defendants of a statute prohibiting them, as directors of a bank, from receiving deposits therein, knowing it to be insolvent. The plaintiff’s contract for the deposit was with the banking corporation, not with the defendants, and his claim against them is for consequential damages which he has sustained by their violation of a penal statute; because, if they had observed the statute, the contract would never have been made. Such claims cannot be metamorphosed into “a debt fraudulently” contracted by the most heroic construction. See Drake, Attachm. § 77.

Order affirmed.