Penrod v. Morrison

[130] The opinion of the Court was delivered by Rogers, J. The plaintiff in error alleges, that' no suit can-Be sustained, because Mitchell had not at the time of the transfer any specific lien on the property. This was an action on the case for a conspiracy, by which the plaintiff has been prevented .from recovering his debt. Morrison being indebted to Mitchell, suit was commenced, which was in a course'of prosecution to judgment and execution. Although Mitchell could not collect his debt, by fi'.fa. and’ levy, as a chose ,in action is not the subject ef execution;' yet satisfaction-might have been attained, by compelling MorrisonXo assign for the benefit of his creditors. There-was at least a? chance- of satisfaction, of which he ought not to be deprived by any fraudulent combination with his de'btors. The-argument of the plaintiff in error would be the same, if Mitchell had, at the time of transfer, an execution in the hands of the sheriff; inasmuch-as- it would not have been a lien on a chose in action. It would be monstrous to say, that at the moment when he was about to attain the fruits of his judgment, the property of the defendant could be withdrawn in-this manner; from the reach of his creditors. The absurdity, and injustice of the doctrine would1 be too- glaring to admit of argument. No authority has-been-cited5 to--sustain the distinction, and none such, I am sure,.’ can be produced. It is unnecessary to throw temptations in the way of fraudulent debtors. It was a principle of t-he- common law, that if an injury was done to the person or property of another, for which damages only could be-recovered in satisfaction, the action died with the person to whom or by whom the wrong was done. As this was calculated to do injustice, we find the rule gradually relaxed'. For-where the goods remained in specie, in the hands of the wrong doer, or his executors, it was decided, that replevin or detinue would liej for or against the executor, to recover back the specific goods, Sir William Jones, 173, 174. And if the goods were consumed, it was ruled that an’action for money had, and received, would lie to recover the value, Cow. 377. These decisions proceed on the principle, that here, there was not only an injury to the plaintiff, but a benefit to the wrong-doer, who either had the-goods-in specie, or had used them, or they had gone into the possession of his executors, and swelled the amount of assets-. This was a departure from the ancient rule, the propriety and justice of which, cannot be questioned. These cases were decided-at common law, independently of the statute of the 4 Edward, 3, c. 7, which has made further alteration in the rule, actio per-sonalis moritur cum persona. The statute de bonis asportatis, which recites, that in times past, executors have not had actions [131] for a trespass done to their testal ors, as of the goods and chattels of the said testators, carried away in the life ; and so as such trespassers have remained - unpunished, enacts, that the executor, in ■such eases, shall have an action against the trespassers; and recover their damages in like manner as they whose executors they be, should have bad, if they were living. This statute, which is further extended to executors of executors, by the 25 Edward, 3, c. 5, and to administrators, by the 31 Edward, 3. c. 11, is in full force in Pennsylvania. These statutes being remedial, have ¿lways been construed liberally. They have been extended to cases which, although not within the words, were thought to be within the mischief intended to be redressed. In giving them a -construction, the Courts have not looked to the form of action, but to the nature of the injury. Whatever remedy the testator -may have had, the same is given to the executors; whether it be '.trespass, trover, or case, is immaterial. Substance, not form, has been regarded. The statute says, they shall recover the damages in like manner as they whose exeeutors they be. Upon a careful review of all the authorities, it will be found, that the executors of a deceased plaintiff will have the same remedy as the tes.tator himself, when the wrong has inured to the benefit of the defendant, or has increased the assets in the hands of his executors. Whether the same rule will apply when the defendant dies, it is unnecessary to decide: although this, which must be admitted to be just and reasonable, would seem to have been the opinion of the Court, in Keite v. Boyd, 16 Serg. & Rawle, 300. I speak, of course, of wrongs done to personal property; not to the person, ,or to the freehold of the testator. And this, we conceive, was the evident intent of the statute, de bonis asportaiis. Thus an executor may have an action of trespass or trover, 5 Rep. 27, Russel’s case. Sir William Jones, 174. An action for a false return, 4 Mod. 403, Williams v. Carey. For an escape, 2 Lord Raym. 973, Berwick v. Andrews. Debt on a judgment against -executors suggesting a devastavit, 1 Salk. 314. Action for removing goods taken in execution before the testator (the landlord) ■was paid a year’s rent, 1 Stra. 212, Polgrave v. Windham, and other actions of a like kind; for injuries done to the personal estate of the testator in his life time. In some of the cases cited, the remedy is given to the executor, merely because the personal property is made less beneficial to the executor, and this without regard to the form of action. Much more then will he be entitled to relief, when the wrong has been, not only injurious to the plaintiff, but beneficial to the defendant. It .cannot be that the death of the plaintiff should enable the wrong-doer or his §xecu--tors to enjoy the fruits of liis injustice. • We have seen that the .form of the action matters not; what then is the nature of the'in [132] jury of which the plaintiff complains? The substance of the case is, that, by the fraudulent conduct of the defendant and his son-in-Jaw, Morrison, the plaintiff has been prevented from recovering a just debt. This is doubtless an injury to the plaintiff, for which the law should provide some remedy. It moreover appears, that the debtor and his fraudulent transferee, have retained in their possession the turnpike orders, or checks, by which they are benefited, and the plaintiff injured to the amount of their value. It is not an injury to his person or freehold, but to personal propertj?. and therefore within the equity of the statute. Most of the cases cited at the bar, were, when the defendant dies, which are notem-braced by the statute, 4 Edward 3, Judgment affirmed,