Darling v. Woodward

54 Vt. 101

• Court: Supreme Court of Vermont
• Decided: October 15, 1881
• Status: Published

Opinion

The opinion of the court was delivered by

Taft, J.

I. The main question in this case is, whether the plaintiff’s claim is barred by the discharge of the defendant under the United States bankrupt act. The plaintiff held a claim upon certain sheep, in possession of the defendant; and as against the plaintiff, the defendant had no right to appropriate the sheep, or the proceeds of the sale of them, to his own use. He sold them, using the avails for his own purposes, with the intention of so doing at the time of the sale, and without the knowledge or consent of the plaintiff. If this debt was created by the fraud of the defendant, it was not discharged by the proceedings in bankruptcy ; and the plaintiff is entitled to recover. Section 5117, Rev. St. U. S. We are unable to determine by what process of subtle and ingenious reasoning, the defendant came to the conclusion that his act in taking sheep that did not belong to him, — the lien upon them being two hundred dollars, and their value much less, — without the knowledge or consent of the plaintiff, was not an active fraud, such as is contemplated by the section of the bankrupt act referred to. He can have no aid from this court in the furtherance of such a transaction. He insists that the relation between the parties was a mere contract, by which he agreed to keep the sheep and lambs as security for the plaintiff. Admitting this to be true, was it not a positive fraud for the defendant to take them and, violating his contract, by selling them, deprive the plaintiff of his property in them ? Such was the result of the sale under the law of this State, an innocent purchaser holding them as against the plaintiff. The defendant claims that there was no finding of fraud by the jury ; the case was tried partly by a concession of facts, and partly by jury. We think that the conceded facts and the verdict establish the proposition that the acts of the defendant were fraudulent in fact. The claim, therefore, was not discharged by the certificate in bankruptcy. Johnson v. Worden, 47 Vt. 457. Upon questions arising under the bankrupt law the decisions of the United States courts are conclusive upon us; but we know of none in conflict with the views herein expressed. Neal v. Clark, 95 U. S. s. c. 704, and the other cases cited by the defendant, either turn upon the construction of what was meant by debts of a fiduciary character, or are cases, where the fact that the transactions were not fraudulent, was expressly found by the jury; and so are not applicable to the case at bar.

II. The question, whether a reasonable time was given for the taking of the deposition of Mattocks, was a matter of discretion with the County Court, and cannot be revised here.

III. The plaintiff moves in this court that a certified execution be granted him. If he had had an opportunity of so doing in the County Court, a motion for that purpose would not now be entertained ; but the judgment below was for the defendant, and the motion is made upon the first occasion when it would be proper to do so. We think upon the facts reported, and the argument, that one should be granted.

Judgment reversed, and judgment for plaintiff.