Forbes & Freeman v. Davison

11 Vt. 660

• Court: Supreme Court of Vermont
• Decided: August 15, 1839
• Status: Published

Opinion

The opinion of the court was delivered by

Collamkb., J.

The statute of 1836, organizing the new county of Lamoille, like all other statutes, is to be construed by a view of the whole statute, and a comparison of all its provisions. Construed in this manner, it amounts to this ; that all actions, pending in other counties, were, by the clerks, to be removed to the new county, where, by the records, it was apparent that the actions would have been commenced in the county of Lamoille, had it existed when the action was commenced. In this case, the plaintiffs resided without the state when the action was commenced, and the defendant resided in the present county of Orleans. The clerk had no means of knowing that he had removed into the county of Lamoille, and, governing, himself by the record, he did right in retaining the suit in this county. If this were otherwise, it was as much the duty of the defendant as the plaintiffs to remove the cause to the new county; and the defendant alone had the means of knowing of his removal. If it was his personal privilege to have the cause tried in Lamoille, he should have asserted this privilege, seasonably, at the first term in that county. Plaving permitted that term to pass, he has waived his privilege, and cannot now insist that he has thereby worked a discontinuance of the action. The motion to dismiss, was, therefore, rightly overruled.

The doctrine of prima facie proof obtains as much in criminal as in civil actions. The plaintiffs alleged that they were copartners. They proved that they conducted business publicly as copartners. This was prima facie evidence that they were such, as well between themselves as to third persons; and they could not be compelled to produce written articles of copartnership, until such articles were proved to have existed. This was equally true as to the articles between Davison & Hovey. As to the articles between Hovey Davison & Hovey, they were of no consequence, as they ended when one of the partners retired. The plaintiffs alleged that Hovey & Davison were indebted to them in certain notes. They produced the notes and showed their execution. This was agreeable to their allegation, and was clearly admissible. It tended to prove the indebtedness at the date of the notes, and was, prima facie, sufficient for that purpose. It was not conclusive, but was admissible, and, whether sufficient or satisfactory to the fact of indebtedness, was entirely a question for the jury.

The defendant insists that the conveyance, by Daniel Davison jr., of his own property, and not the property of the copartnership, was inadmissible. Each member of a co-partnership is debtor to the creditors of the firm, and his own property is liable, even in the first instance, for the debts of the partnership. A fraud may be committed in the conveyance of his property, to avoid such debts, as much as to avoid any other debt he owes. Such was this declaration, and the proof was agreeable thereto.

Was the deposition of Robbins rightly rejected ? It tended to show two things. First, that the plaintiffs had assigned their debts, mentioned in the declaration. If a conveyance is had to defraud a creditor, the right to an action for the pen dty, mentioned in the statute, immediately accrues. The recovery of the penalty does not pay the debt, nor does the collection or payment of the debt cancel the penalty. Though the debt be but one hundred dollars, the creditor may recover the penalty, being the amount of the property fraudulently conveyed, even though .it amounted to as many thousands. He may levy his debt on the property fraudulently conveyed, and also collect his whole debt, and still recover the penalty. The conveyance may have rendered the debtor so entirely insolvent that the creditor may sell his debt at great discount, yet this would constitute a poor reason why he should not recover the penalty, for the very act which had produced his necessities. In short, the sale or assignment of the plaintiffs’ debt, after the fraudulent conveyance, whether before or after the commencement of this action, was of no consequence. The other fact which the deposition of Robbins tended to prove, was, that the plaintiffs did not direct the commencement of this action. That is a point which can never be put in issue in any cause. It constitutes no defence. When a plaintiff knows of an action in his name, and will not discontinue nor release it, he ratifies it, and it is of no importance that he did not order it. He will be subject to cost if judgment is against him, and is entitled to the judgment, if in his favor. The deposition was, therefore, rightly rejected.

An intent to defraud must be shown, but, obviously, the effect is the same, whether the intent was to defraud all creditors, including the plaintiff, or to defraud him alone. It cannot be permitted, that a conveyance may be had to defraud all a man’s creditors, and yet, that neither of them can have an action. The effect is the same to the defendant, whether sued by all, jointly, (even if such a thing could be done,) or by one alone, as but one penalty can be collected.

The defendant insists that no recovery should have been had against him, without proof that he, after taking this fraudulent conveyance, justified the same. The clear intent and meaning are quite obvious, from the words of the statute. If any man shall execute or receive any conveyance, with intent, at the time, thereby to defraud the creditors of the grantor, ho has incurred the penalty in the statute. He does, by the very act, justify the same. But, a conveyance may he made with such intent, and the grantee not, at the time, be informed of it. In such case, he does not incur the penalty, until, after being fully informed, he shall still insist on justifying the same, or shall himself make a conveyance thereof. In this case, the defendant took the conveyance knowing its object, and pretended to pay for it with his own money, which money belonged to the grantor, and was secretly furnished to the defendant for the occasion. This was justifying a conveyance which the defendant knew to be fraudulent, and he then incurred the penalty.

The only remaining question relates to the statute of limitations. The first section of the statute of 1797 extends to qui tarn popular actions, for penalties, and limits them to one year. The declaratory statute of 1808 provides that this section “shall not be so construed as to extend to any case where the remedy for the forfeiture on any penal statute is or shall be given to the person injured, or to him and the treasurer.” In this case, the penalty is, by the statute, given to the party aggrieved and to the treasurer. The defendant’s counsel, however, insist that the court should by some ingenious legal device, some oblique or indirect method, bring the case within this first section or its spirit. We feel no inclination to trifle with the clear intent of the legislature, as expressed in the act of 1808, or to render that act nugatory, as the defendant contends. There is a great difference in deciding, where there is no statute, and in holding what a statute expressly forbids. Whether the general statute of limitations for actions on the case, extends to this species of action, is immaterial, as six years had not elapsed.

Judgment affirmed.