Fitch v. Waite

Hosmer, Ch. J. In this case, the judge charged the jury, that Avery was an absent and absconding debtor, and that the defendant was his agent, responsible to the plaintiff’s demand. To review this opinion, is the object of the present motion. Who is an absent and absconding debtor ? He who lives without the state, or who has intentionally concealed himself from his creditors, or withdrawn himself from the reach of their suits, with intent to frustrate their just demands. Thus, if a person depart from his usual residency, or remain absent therefrom, or conceal himself in his house, so that he cannot be served with process, with intent unlawfully to delay, or defraud his creditors, he is an absconding debtor. But, if he depart from the state, or from his usual abode, with the intention of again returning, and without any fraudulent design, he has not absconded, nor absented himself within the intendment of the law. The act of foreign attachment was passed, “ for the better preventing fraud and deceit, sometimes designed and practised, by ill-minded debtors, who betrust their goods and effects in the [122] hands of others, with intent to receive and secure the same to their own use;" and like all other remedial statutes, it ought to be liberally and beneficially expounded. But where there has been no imagination of fraud, and the debtor has only removed from his permanent residence, to another town in the state, in an honest pursuit after property, there can be no well founded pretence, that he is within the law. It appears, that Avery departed from Lyme, his usual place of residence, and was absent about three months, within which period, the foreign attachment in question was served. During all the aforesaid time, he was working as a journeyman blacksmith, openly and publicly, at Meriden, in the county of New-Haven, without resorting to any measures of concealment; but this was unknown at Lyme, and his absence became the subject of conversation. Upon these facts, abstracted from any other testimony, (and no other was exhibited,) there is no ground on which an absconding from creditors, can be inferred. On this point, it is decisive, that whether Avery had intentionally withdrawn himself from his creditors, with a view to elude process, and evade their demands, is a question of fact, which should have been submitted to the jury. The judge might, with propriety, express an opinion upon the testimony; but it was overleaping his jurisdiction, to direct the jury, to find their verdict for the plaintiff, as he did, on a subject, which was within their exclusive cognizance to determine. Walden v. Walden, 12 Johns Rep. 513. The opinion expressed by the judge, and the direction given by him to the jury, were both incorrect. Whether the defendant was liable to the plaintiff, as being the debtor of Avery since the statute has declared, (p. 63. ed. 1808.) “ that debts due to an absent or absconding debtor, shall be considered as his effects, in the hands of the person, from whom the same are due,” is the next question presented in this case. The enquiry is; what debt was due, from the defendant to Avery, at the time the attachment was served ? The moment of service, is the precise period, when a debt is attached; and if it be then existing, it is secured by the process; but if it does not then exist, no lien is created; as the operation of an attachment, from its nature, is immediate, and not prospective. A future liability is not attachable, for the conclusive reason, that it is not a debt due. Townsend & al. v. Atwater & al. 5 Day 298. Now, the defendant, at the service of the plaintiff's attachment, owed Avery nothing; and whether he [123] ever would, was a mere contingency, dependent on the collection of money, from some of his debtors. If Avery had brought a suit against the defendant for a debt, what would he have recovered? Nothing; because the defendant, was, in no sense, his debtor, but was his creditor, for the advancements he had made. The creditor of the absconding debtor stands in his place; and has no claim, except the one existing in his debtor’s favour. It most probably was believed, by the plaintiff, that by his attachment, he obtained a lien on the notes put in the defendant’s hands for collection. This idea, if entertained, is not countenanced by the statute, the provisions of which are very explicit; and is opposed to the well established doctrine, that choses in action, are not attachable, or subject to execution, because they are incapable of being sold. Com. Dig. tit. Execution. C. 4. In conclusion, I am clearly of opinion, that the defendant was not the debtor of Avery; that Avery was not an absconding debtor, within the intendment of the law; and that the direction to the jury was unauthorised. The other Judges were of the same opinion. New trial to be granted.