Risley v. Welles

Bristol, J. The judge who tried this cause at the circuit, in conformity to a former decision of the superior court, decided, that the value of land, conveyed to the defendants by a fraudulent deed, might be recovered upon scire-facias, under the act relative to foreign attachments. The correctness of this doctrine is now, for the first time, presented to the consideration of this Court. It has been urged in the argument of this case, by the counsel of the plaintiff, that the language of the statute for the recovery of debts out of the estate and effects of absent and absconding debtors, clearly authorizes the creditor to attach lands fraudently conveyed, and to recover the value thereof upon a scire-facias against the garnishee; and that the objections made to it, might, with more propriety, be addressed to the legislature than to this Court. But on a careful examination of the statute, not even the letter of the statute will be found to countenance the doctrine, that a garnishee is personally liable on the process of scire-facias, for lands held under a fraudulent deed. The act is entitled [434] “an act for the recovery of debts out of the estate and effects of absent and absconding debtors;” shewing that one leading object, was the recovery of debts out of the specific lands, goods or effects so fraudulently conveyed. The first section of the statute contains a general declaration, that the lands goods or effects of an absent and absconding debtor, may be attached, in whosever hands the same may be found ; and that the attachment of a part shall make the whole liable to respond the judgment which may be recovered. The second section of the statute provides, that where no lands, goods or estate, can be come at, so as to be attached, it shall be lawful for the creditor to bring his action against the debtor, and that leaving a copy with the attorney, &c. fourteen days before the trial, shall be sufficient notice to bring his cause forward for trial. These two sections of the statute, prescribe what goods and estate may be attached, and how it may be done, when they cannot be come at, so as to be attached in the ordinary way. The third section declares, that the estate and effects so attached, shall be liable to respond the judgment which may be recovered by the creditor; but the mode of enforcing this liability is not specifically pointed out; and must depend on the general principles of our code regulating setting off land on execution, unless the remedy by scire-facias to recover the value of lands held under fraudulent deeds, is specially provided for, by the statute in question. Thus far the statute is conversant with the kind of property to be attached ; the manner of attaching it ; and the liability of the property attached to respond the judgment ; and we are not informed of the responsibilities incurred by the garnishee, in case he neglects to expose the property in his hands, until such liability is declared by the fourth section of the statute : and in respect to land, we find that the statute has imposed no responsibility for neglecting to expose to be taken on execution land held under fraudulent grants ; and for this obvious reason, that land can always be taken on execution, and set off to the creditor, as well without exposure by the garnishee, as it can be if he does expose it. The fourth section of the statute already alluded to, merely provides, that in case the garnishee, upon demand made, does not expose the goods and effects, in his hands, so that they may be taken on execution, he shall be liable to answer out of his own estate, to the extent of the goods and effects, thus withheld from the attaching creditor. As land is a subject incapa [435] ble of concealment, we can perceive no reason why it should not be levied on, and set off in the usual way ; or why the garnishee should be rendered personally liable: and this section of the statute, which limits and fixes the liability of the garnishee, declares him liable only, for not exposing goods and effects. The terms, goods and effects, cannot be extended to embrace lands within their meaning, unless required by the clear intention of the legislature. Camfield v. Gilbert, East, 524, 5. And in the present case, no extension of the ordinary import of language is called for, by the general spirit of the act, or the intention of the legislature. I would advise a new trial. Hosmer, Ch. J., and Peters and Brainard, Js. were of the same opinion. New trial to be granted.