Slack v. Gibbs

The opinion of the court was delivered by Williams, Ch. J. In this case we are to determine both the sufficiency of the declaration of the plaintiff, and the correctness of the ruling of the county court on the trial. On the latter, it is only to be said that the proceedings of the county court were unquestionably right. A conveyance of property, however fraudulently intended or conceived, made in another state, cannot be a breach of our penal laws, or subject the party to a penalty therefor. Our laws are of no efficacy out of the territorial limits of the state, and however immoral a transaction may be, committed in another jurisdiction, it cannot be punished here, as a violation of the laws of this state. The sale of the horses in New Hampshire was properly excluded from the consideration of the jury. More important questions arise on the motion in arrest. Those which relate to the form of the declaration may be passed over with this remark, that it appears to have been accurately drawn, and is not liable to any of the technical objections which are raised against it. That the conveyance was made in the county of Windsor, presents no obstacle against a recovery by this plaintiff, and by a suit brought in this county. The penalty given to the party aggrieved, by the statute in force when this suit was brought, was to be equally divided between him and the county treasurer, without designating what treasurer, and, so far as it was intended'as a punishment, it is wholly immaterial into what treasury that part of the sum forfeited shall be paid, and it may as well be paid to the treasurer of the county where the suit is brought as to any other. The party aggrieved, who alone can institute the action, may commence it, either in the county where he resides, or where the defendants reside, and when a recovery is had and satisfaction obtained, he must pay that part which belongs to the public to the treasurer entitled to receive it. This was once decided [365] in the case of Chipman, qui tam v. Eaton. The revised statutes have now pointed out to what county treasurer the half of the penalty is now to be paid. A more formidable objection, however, is presented in the joinder of the grantor and grantee as defendants in one suit. It is well settled that when several are sued jointly for an offence, which is in its nature several, and when each separately are liable to the penalty sued for, there can be no recovery and judgment will be arrested if there is a verdict against them. Whether the penally incurred is a single penalty, or whether each of the parties to a fraudulent deed may be separately guilty, and each liable to a forfeiture, is the question now to . be determined. The words of the statute are that c every of the parties’ &c. These are the appropriate words to designate a several offence and a several penalty. There are two parties to a deed or conveyance ; the grantor or grantors and the grantee or grantees, and although, with respect to the grantors, they may be joint or several, whether there is one or more who make the conveyance, and so with respect to the grantees ; yet, we apprehend that the grantor and grantee are several and separate parties to the deed or conveyance, and when every of.the parties are declared to be guilty of an offence, and to incur a forfeiture, the natural conclusion would be that each was liable, i. e. the grantor and the grantee. If only one penalty is incurred by a fraudulent conveyance, by the grantor and grantee jointly, neither party could be a Witness in a suit brought against the other to recover the penalty, as he would be directly interested to fasten a recovery on the other party, which, if satisfied, would exonerate him from any further liability. This court have decided that, in such an action, the fraudulent grantor may be a witness, and this could only be on the ground that the forfeitures were separate and independent. Again, the public interest and the interest of creditors require that the whole of the penalties should be inflicted for the suppression of fraud. It. should not be permitted to one creditor to recover the whole penalty, in a joint action against the two, if each are equally guilty, and each liable to a penalty. If we are permitted to reason ah inconvenienti, it is apparent that it would be hazardous to two parties to be thus [366] joined. The admissions of either would be legitimate and legal evidence, and if the declarations of one strongly implicated the other, it would be very difficult to prevent their having an effect on a jury, unfavorable to the one implicated as well as to the one who made them, notwithstanding the jury should be instructed that the confession of one should not affect the other. The two last reasons, however, are of no importance if the true construction of the statute is that the offence is joint and only one penalty incurred. The statute of 27 Eliz. chapter 4 enacts ‘ that every of the parties ‘ to a fraudvlent conveyance, or being privy thereto, shall ‘justify, &c., shall forfeit one years value of the lands,’ &c. This statute, it is to be noticed, is in the words of ours. Under this statute it was held that every defendant found guilty should pay a years value of the land every one by himself and not jointly among them all. 13 Viner, 534. It is true that the statute gives the penalty to the party aggrieved, and, according to the case of Patridg v. Naylor, Cro. Eliz. 480, it would seem that where a penalty is given to the party aggrived, in the nature of a satisfaction, but one penalty is incurred. In that case the whole penalty was given to the party aggrieved for impounding a distress in a wrong place. There was but one act of impounding though several were concerned in it, and as it was but one offence, and given to the party, alone, in the nature of a satisfaction for the damages he sustained, it was adjudged it should be satisfied by one forfeiture. The penalty under the statute against fraudulent conveyances is not given to the party aggrieved in the nature of a satisfaction for his debt; it is not given to him alone, but, in part, to the county treasurer, and is designed as a punishment of the offender. The party aggrieved is required to prosecute, as being the one having the strongest motives and the most likely to be induced to bring the offender to justice and to inflict the penalty provided by law. In any view we can take of this subject, we think the penalties are separate, several, and to be visited on each of the fraudulent parties to the conveyance, and although to inflict the penalty on the grantee, it may be necessary to show that the conveyance was fraudulent as to both, yet, it is very apparent it may be incurred at different times, and a party may make a conveyance with an intent to de- [367] fraud his creditors, and thus be liable to the penalty, when the person to whom it was made would not be liable, unless he, with like fraudulent intent, accepted or justified the conveyance. Both of the parties cannot be sued jointly, and for that reason the judgment of the county court must be reversed and the judgment arrested.