Treadway v. Andrews

Waite, J. Two exceptions have been taken to the sufficiency of the declaration. The first is, that it does not state, that the original action was brought for the recovery of a debt. The second is, that it is not averred, that the goods attached were concealed in the hands of the garnishee, so that they could not be found to be attached. 1. With respect to the first exception, we do not deem it necessary to determine whether the process of foreign attachment will, or will not, lie, in all cases, where the suit is brought for the recovery of damages, arising from a breach of contract. For we think, that, if there is any defect in the declaration, in this respect, it is cured by verdict. The plaintiff alleges, that he brought his action of assumpsit against Gale, an absent and absconding debtor, within the intent and meaning of the statute ; that the sheriff, with the execution, made demand of the debtor therein named, and also made demand of the defendant for the goods of the said debtor. These allegations imply, that Gale was a debtor in some matter, which was the proper subject of an action of assump-sit, and is, at most, but a title defectively stated, and therefore cured by verdict. 2. It is averred in the declaration, that, at the time, when the service was made upon the defendant, he had in his hands concealed, the goods and effects of Gale; but the objection is, that it is not averred, in the language of the statute, that they could not be found to be attached. This, in our opinion, is not required ; nor is it in conformity with the general practice in cases of this kind. The statute [392] was made originally, for the prevention of fraud. It was passed, at an early period ; (a) and in the preamble, it was stated to be an act “ for the better preventing fraud and deceit, sometimes designed and practiced by ill-minded debtors, who betrust their goods, estate, or effects, in the hands of others, with intent to reserve and receive the same to their own use, and thereby defeat their creditors of their just dues.” Stat. 61. (ed. 1808) The statute then provided, that the creditor might attach all the goods and effects in the hands of the absconding debtor’s attorney, agent, factor, or trustee, by leaving with him a copy of the writ. Under the provisions of this act, and in conformity with the simplicity, which has ever prevailed in all our legal proceedings, the general practice has been, for the creditor to insert in his writ, in general terms, a direction, that the officer leave with the garnishee, as the attorney, agent, factor, and trustee of the defendant, a copy of the original writ. Enough is stated, to enable the officer to understand the duty he is required to perform, and give notice to the garnishee of the purpose for which the copy is left with him. The statute then informs him of the obligations imposed upon him, by the service of the process. To these averments in the writ, he is not required to make any plea or answer. The scire-facias, which follows, to enforce payment, generally contains but little more than a detail of the proceedings in the former suit. But for another reason, this exception can not prevail. The defendant is described, not only as trustee, having the goods of Gale in his possession, but as being indebted to him. A debt due from the garnishee can only be attached by this process ; and there is, consequently, no necessity for saying that it can not otherwise be attached. The provisions of the statute having been found highly beneficial in their operation, they have been greatly extended, by recent statutes; and yet the same simplicity of form has generally been retained in practice. The statute of 1784, authorizing the attachment of debts, as well as tangible property, renders it necessary to describe the garnishee in the [393] original writ, as being indebted to the original defendant, in order to inform him, that the debt, as well as the property in his hands, has been attached. The defendant in this case having been described as a debtor of Gale, the attachment of the debt is good, even if it should be invalid as to the personal property ; and consequently, the motion in arrest, upon this ground, can not prevail. A new trial is also claimed for an alleged misdirection given to the jury in the court below. Upon the trial, the plaintiff offered in evidence the original writ of foreign attachment, The defendant claimed, that it did not support the allegation in the declaration, as to the defendant's being a garnishee. The writ directed copies to be left with the defendant, Russel Goe and Stephen Seymour, as they, or either of them, are the attorneys, agents, factors and trustees of Gale, and are indebted to him. This averment is certainly very loose and indefinite, and most carelessly expressed, and in a declaration or plea, could not stand for a moment. But if, as we have already said, such an averment is to be treated, as notice to the garnishees, of the purpose for which the copies were left with them, and to which they were neither called upon to plead nor make answer, we are inclined to say, although not without much hesitation, that it may be deemed sufficient for that purpose; especially, when taken in connexion with the subsequent direction requiring them to appear before the court, and disclose on oath, whether they, or either of them, had, in their hands, the goods of Gale, or were indebted to him. The charge of the court, that the attachment of the property in the hands of the defendant, and of the debt due from him, was not invalid, by reason of that defect, we are inclined to think, was not erroneous. It is finally claimed, that the charge of the court in relation to the concealment of the property, was wrong. The plaintiff offered evidence to prove, that on the eve of Gale's failure, the property was secretly removed to the defendant's premises; and from that time, the defendant held himself out to the public, as the owner; that when the sheriff called upon him, to serve the writ, he informed the officer, [394] at none of Gale’s property in his possession. This, our opinion, was such a concealment, as within a reasona-ye constructjon 0f the statute, entitled the plaintiff to his writ 0f foreign attachment, and gave him a right to attach the goods in the defendant’s hands, although they might have been accessible to the officer. The statute, having been made for the suppression of fraud, has always received a liberal construction. Cole v. Wooster, 2 Conn. R. 203. Enos v. Tuttle, 3 Conn. R. 27. Starr v. Carrington, Id. 278. Gager v. Watson, 11 Conn. R. 168. Thus, while the body of a debtor was liable to imprisonment, and the goods of an absent and absconding debtor only could be attached, it was holden, that a debtor who had intentionally concealed himself from his creditors, or had withdrawn himself from the reach of their suits, with intent to frustrate their demands, was an absent and absconding debtor within the meaning of the statute. Fitch v. Waite, 5 Conn. R. 121. So a person, who holds himself out to the world as the owner of the goods of another, declaring them to be his own, ought to be estopped from saying that they were not concealed iq his hands, and so concealed as to be liable to be attached, by process of foreign attachment. We therefore advise the superior court to deny the motion for a new trial, and render judgment for the plaintiff. In this opinion the other Judges concurred. Motion in arrest overruled. New trial not to be granted. Footnotes [(a)] In May, 1726.