Fogg v. Lawry

Supreme Judicial Court of Maine

Fogg v. Lawry

71 Me. 215, 1880 Me. LEXIS 63

DecidedMay 28, 1880

StatusPublished

This text of 71 Me. 215 (Fogg v. Lawry) is published on Counsel Stack Legal Research, covering Supreme Judicial Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fogg v. Lawry, 71 Me. 215, 1880 Me. LEXIS 63 (Me. 1880).

Pincite

Opinion

WaltoN, J.

The question is whether one, who has commenced an action to recover the penalty provided for in B. S., c. 113, § 51, (which declares that whoever knowingly aids a debtor in a fraudulent transfer of his property, to secure it from creditors, shall be liable to any creditor suing therefor in double the amomit of the property so fraudulently transferred, not exceeding double the amount of such creditor’s demand), by filing a petition against his debtor and having him declared a bankrupt, and by causing a suit tp be commenced against the alleged fraudulent transferee, by the assignee in bankruptcy, to recover the value of the property alleged to have been fraudulently transferred, thereby waives his right to further prosecute his own suit. We think he does. .By first commencing a suit to recover the penalty provided for in the statute, a creditor undoubtedly obtains a priority of right to prosecute it to final judgment, not only as against other creditors, but also as against the debtor’s assignee in bankruptcy. But this is a right which [217]*217be may waive. If he requests the debtor’s assignee in bankruptcy to pursue the same property, and, in pursuance of such request, the assignee commences a suit against the alleged fraudulent transferee to recover its value for the benefit of all the creditors, we think the plaintiff in the first suit does thereby waive his right to prosecute it further; that such request, when acted upon, becomes irrevocable while the second suit is pending. To hold otherwise would make the defendant liable to pay three times the value of the property conveyed to him, — once to the assignee, and twice to the pursuing creditor. This is a greater penalty than the statute imposes. The statute makes him liable for double the value of the property fraudulently conveyed to him, but it does not make him liable for three times its value. The statute though technically a remedial one, is penal in its character, and must be strictly construed. - It must not be so construed as to impose a greater penalty than the plain meaning of its terms requires.

Judgment for the defendant.

AppletoN, C. J., Barrows, DaNeorth, Libbey and SymoNds, JJ., concurred.

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WaltoN, J.

The question is whether one, who has commenced an action to recover the penalty provided for in B. S., c. 113, § 51, (which declares that whoever knowingly aids a debtor in a fraudulent transfer of his property, to secure it from creditors, shall be liable to any creditor suing therefor in double the amomit of the property so fraudulently transferred, not exceeding double the amount of such creditor’s demand), by filing a petition against his debtor and having him declared a bankrupt, and by causing a suit tp be commenced against the alleged fraudulent transferee, by the assignee in bankruptcy, to recover the value of the property alleged to have been fraudulently transferred, thereby waives his right to further prosecute his own suit. We think he does. .By first commencing a suit to recover the penalty provided for in the statute, a creditor undoubtedly obtains a priority of right to prosecute it to final judgment, not only as against other creditors, but also as against the debtor’s assignee in bankruptcy. But this is a right which [217]*217be may waive. If he requests the debtor’s assignee in bankruptcy to pursue the same property, and, in pursuance of such request, the assignee commences a suit against the alleged fraudulent transferee to recover its value for the benefit of all the creditors, we think the plaintiff in the first suit does thereby waive his right to prosecute it further; that such request, when acted upon, becomes irrevocable while the second suit is pending. To hold otherwise would make the defendant liable to pay three times the value of the property conveyed to him, — once to the assignee, and twice to the pursuing creditor. This is a greater penalty than the statute imposes. The statute makes him liable for double the value of the property fraudulently conveyed to him, but it does not make him liable for three times its value. The statute though technically a remedial one, is penal in its character, and must be strictly construed. - It must not be so construed as to impose a greater penalty than the plain meaning of its terms requires.

Judgment for the defendant.

AppletoN, C. J., Barrows, DaNeorth, Libbey and SymoNds, JJ., concurred.

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Bluebook (online)

71 Me. 215, 1880 Me. LEXIS 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fogg-v-lawry-me-1880.