Wellington v. Small

57 Mass. 145

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1849
• Status: Published

Opinion

Metcalf, J.

The decision, in the ease of Lamb v. Stone, 11 Pick. 527, was made after full argument and careful consideration ; and upon reexamining it, we find no reason to question its correctness. It is warranted by the previous case of Smith v. Blake, 1 Day, 258, and confirmed by the subsequent case of Green v. Kimble, 6 Blackf. 552. A contrary decision was made in Penrod v. Morrison, 2 Pennsyl. 126; but as no legal reasons are given for that decision, it does not change our views of the law. All the other eases now relied on by the plaintiff’s counsel, which bear much on the point raised by him, were considered by the court, before giving judgment in Lamb v. Stone.

The grounds of the adjudication in Lamb v. Stone were, that the action was without precedent; that the plaintiff had no lien on the property of his debtor, no interest in it claim on it, or right to it, when the defendant converted it to his own use ; that such conversion merely lessened the plaintiff’s chances of acquiring a right to the property, or a hold upon it by way of security for his dues ; that the defendant would be liable to a like action by every other creditor, as well as $o the plaintiff; that the damage, if any, was too remote and contingent to be the ground of an action ; and that the plaintiff’s appropriate remedy was by attaching the property in the defendant’s hands, or by summoning him in the trustee process, or by committing his debtor to prison and preventing his taking of the poor debtors’ oath. It might have been added, that the case was not varied by the fraudulent intent of the defendant, which was alleged in the declaration, because such intent could not make the plaintiff’s damage any greater, or any less remote or contingent, than it would have been if no such intent had existed. Besides ; an act done in pursuance of an unlawful intent is no ground for a civil action, unless some actual damage ensues. Morgan v. Bliss, 2 Mass. 111.

The uncertainty of the plaintiff’s damage seems, of itself alone, to be a sufficient reason for his not recovering. In an action on the case ex delicto, the plaintiff must show injury and damage; and these must be shown as facts, by legal proofs, except in a few cases, where, by the rule of law, damage is presumed from the act complained of. This case does not fall within that exception. How could this plaintiff prove that he suffered any damage from the acts of the defendant, which are averred in the declaration ? How could he prove that he would have secured his debt by attaching the property of his debtor, if the defendant had not inter-meddled with it ? Other creditors might have attached it before him, or it might have been stolen or destroyed while in the debtor’s possession. The fact that the plaintiff has suffered actual damage from the defendant’s conduct is not capable of legal proof, because it is not within the compass of human knowledge, and therefore cannot be shown by human testimony. It depends on numberless unknown contingencies, and can be nothing more than a matter of conjecture.

The case of Lamb v. Stone was decided on a motion in arrest of judgment; and the plaintiff’s counsel has suggested that there are averments, in the declaration now before us, which were omitted in that case, and which show a legal cause of action against the present defendant. The additional averments on which he relies are, 1st, That there was a conspiracy between the plaintiff’s debtor and the defendant to delay and defeat the plaintiff and other creditors ; 2d, That the plaintiff’s debtor was insolvent when this action was commenced ; and 3d, That the defendant concealed the property of said debtor.

It seems to us that neither of these averments, nor all of them combined, can make any legal difference between this case and that of Lamb v. Stone. They show no additional cause of action, because they show no additional right of the plaintiff to the debtor’s goods, nor any less remote or contingent damage to the plaintiff. As to the first of these averments, it may be remarked, that if an act is done by one alone, which is no cause of action, a like act is not rendered actionable by being done in pursuance of a conspiracy. In an action on the case in the nature of a conspiracy, the gist of the action is not the conspiracy, (as it is in an indictment, and was in the old writ of conspiracy,) but the damage done to the plaintiff.

The fraudulent cancelling of the debt, which the defendant owed to Dexter Small, stands, to say the least, on no better grounds for the plaintiff than the fraudulent disposition made of the goods. As against the plaintiff, this transaction worked no legal injury. The remedy by the trustee process remained open to him, and his debtor, if committed to prison, could not have been discharged without purging himself, by oath, from the alleged fraud.

Plaintiff nonsuit.