Bryant v. Simoneau

Mr. Justice Walker delivered the opinion of the Court: It appears, from the record in this case, that on the 18th day of June, 1869, defendants in error sued out a writ of attachment from the Woodford Circuit Court, against the goods, chattels and effects of plaintiffs in error. The affidavit alleged an indebtedness, and that the defendants were about to depart from the State with the intention of having their effects removed therefrom. By leave of the court, plaintiffs subsequently filed an amended affidavit, charging that defendants had fraudulently conveyed or assigned their property and effects, for the purpose of hindering and delaying their creditors in the collection of their debts, within two years of the filing of the original affidavit; that they had fraudulently concealed their property or effects within the same time, for the purpose of delaying their creditors, and they were about fraudulently to conceal or assign their property, so as to hinder and delay their creditors, at the time of filing the original affidavit. Defendants filed a plea in abatement, traversing the allegations of the affidavits. A trial was had by the court and jury, and the issues were found for plaintiff, and judgment was rendered on the verdict. It is urged, that there is no evidence that plaintiffs in error were endeavoring to remove their property from the State, or that they had endeavored to fraudulently sell it, or otherwise dispose of it for fraudulent purposes. It appears that Bushnell had, a short time previous to the commencement of the suit, absconded, and gone to the State of Indiana, and plaintiffs in error had been making efforts to sell their stock of goods; and a short time before the suit was commenced, and on the night before he left, he loaded goods from the store, marked, “ Household. Goods,” which were taken away in a wagon; that the front door and blinds were closed when they were taken. The clerk and teamster fix the hauling the. goods from Secor 'to Gridley a few days before the commencement of this suit, while the station agent of the railroad fixes the shipping of a lot of goods similarly marked, several weeks later, but thinks the goods had been there about a week before they were shipped. It is clear, beyond question, that the goods, taken from the rear of the store at night, and sent from a point where there was a station on the road, beyond another station, to Gridley, to be shipped by the same road, were fraudulently concealed. They seem to have left Secor at 3 o’clock at night, and in a rain storm, in bad roads. If the purpose was fair and honest, why this clandestine concealment and secret course, seeking a stormy night, when but few, if any, persons would be abroad? The evident purpose of those engaged in this transaction was to elude the vigilance of creditors. But it is urged, that as the freight agent fixes 'the shipment of the goods to Bushnell, in Indiana, on the 2d day of August, it follows, that the goods were removed after the suit was brought. It will be observed that the freight agent does not fix the date of their being placed in the depot, but says they had been there about a week, while the clerk in the store, and the teamster who hauled the goods, fix it at a short time before this suit was brought. Here was an apparent contrariety in the evidence, which the jury were required to reconcile, and they probably believed the freight agent was mistaken as to the time when the goods were placed in the depot. They would most probably so conclude, rather than believe that two witnesses swore falsely. Or they may have concluded that there had been another lot of goods hauled to Gridley by another person, as the freight agent was not certain as to the name of the teamster. Independent of all this testimony, however, we have the admissions of Bryant proved, that Bushnell, his partner, had absconded to Indiana, and taken most of the means of the firm, with him, and left Bryant to pay the debts. This evidence would alone be sufficient to warrant the conclusion that plaintiffs in error were removing their goods beyond the limits of the State to defraud their creditors. So far as we can see, Bryant made no effort to prevent Bushnell from taking the firm means; and if he knew of his intention to do so, and made no effort to prevent it, the jury were warranted in believing that it wascwith his assent. And if so, both partners were guilty of removing their goods beyond reach of process, for the purpose of defrauding their creditors. It is urged, that fraud must be proved and not inferred. This is true, but, like' all other facts, it may be proved by circumstances. We should seldom, if ever, expect to prove fraud by the admissions of a party, nor should we expect to find direct and positive evidence of the fact. Whatever circumstances, when proven, convince the mind that the fraud charged has been perpetrated, is all that is required. Bullock v. Narrott, 49 Ill. 62; Gray v. St. John, 25 Ill. 222; Boies v. Henney, 32 Ill. 130. While fraud can not be established by circumstances that merely raise a suspicion, yet, when they are so strong as to produce conviction of the truth of the charge, although there may remain some doubt, then it is proved. This is believed to be the extent of the rule that fraud must be proved. Any other application of the rule would render it impracticable and useless. If it can not have the force we have given it, and stand, then the demands of justice would require its abrogation. If it must prevail, and none but positive evidence could prove fraud, then the rule would not only promote, but it would aid in concealing fraud. But such never can be the scope or effect of the rule. The instructions presented the law of the case fairly to the jury, and the evidence sustains the verdict, and the judgment of the court below must be affirmed. Judgment affirmed.