Craig v. Webber , 36 Me. 504 ( 1853 )

Appleton, J. —

This is a special action on the case, in which the plaintiff, under the provisions of R. S., c. 184, § 49, claims to recover of the defendant for aiding in the fraudulent transfer or concealment of the property of one Henry S. Willa, whose creditor he alleges himself to be.

It appears in evidence that the plaintiff having commenced an action of trespass against Willa, he, during the pendency of the suit, fraudulently transferred his property to the defendant without consideration, and for the avowed purpose of preventing its seizure, on such execution as might eventually be recovered. Some time after this transfer, judgment was obtained, which remains unsatisfied. From the evidence reported, the defendant is within the section on which this suit is founded, and would, under its provisions, undoubtedly be liable to any of the creditors of Willa. The question here" presented, is whether, having at the time of the transfer an unliquidated claim for damages, the plaintiff is to be deemed a creditor within a just construction of the Act.

The R. S., c. 148, § 49, give the right of action against persons aiding in the fraudulent concealment or transfer of property "to any creditor" who shall sue, and he is entitled to recover “ double the amount of property so fraudulently concealed or transferred, not however exceeding double the amount of such creditor's just debt or demand." Debtor and creditor are correlative terms implying correlative relations, simultaneous in their origin and inseparable in their existence. No debt exists without a corresponding credit. The distinction between contracts and torts is recognized in all codes. Contracts are entered into; they are the results of mutual assent between the parties to them. Torts are committed without and against consent. An unliquidated claim for damages, as for words spoken, or for a trespass to person or property, would not, in the ordinary use of language, imply the relation of debtor and creditor between the slanderer and the person slandered, or between the trespasser and the person upon whose rights a trespass had been committed. Nor have the words any such technical signification, so that such should be considered their meaning when used in legislative enactments. “ In general, whenever a contract is such as to give one of the parties a right to receive a certain and liquidated sum of money from the other, (as in the case of a bond for the payment of money or an implied promise to pay for goods supplied, so much as they shall be reasonably worth,) a debt is said to exist between the parties, while on the other hand, if the demand be of uncertain amount, as when an action is brought against a bailee, for injury done through his negligence to an article committed to his care, it is described not as a debt, but as a claim for damages." 2 Steph. Com. 187. In the construction of the statute of foreign attachments, no claim for a tort is deemed to be embraced within the word “ credits.” “ A man may be liable to another to an action for slander, assault and battery or any other tort," says Mellen, C. J., in Rundlett v. Jordan, 3 Greenl. 47, “in which heavy damages would be given, but such a liability would not render him a trustee.” When the remedy of the defendant lies in tort merely against another, such person cannot be summoned as trustee. Paul v. Paul, 10 N. H., 117. The language of the English Bankrupt Law is more general than that of the statute under consideration, yet, by the uniform course of the authorities, a claim for damages arising from a tort is not barred by a discharge. Parker v. Norton, 6 T. R., 695. The same construction has been given to the recent Bankrupt Act of the United States. Hughes v. Oliver, 8 Barr, 429. When a demand founded on tort passes into a judgment, it becomes a debt and is discharged. But to produce this result, judgment must be entered up before the bankruptcy. The mere assessment of damages by a jury or the award of referees, will not be sufficient. Bress v. Gilbert, 2 M. & S., 70; Crouch v. Gridley, 6 Hill, 250. In case of intestacy, if the next of kin refuse to administer upon the estate, the Judge of Probate may by statute commit administration to one of the principal creditors, but it would be a novel construction, which should declare the plaintiff in slander or in trespass a creditor and entitled to administer upon the estate of the defendant whom he had been pursuing.

The English statute against fraudulent conveyances, of which this is a fitting complement, has been construed to embrace creditors and those against whom a tort had been committed. But the language of that Act is most general, making all feoffments, gifts, grants, &c., contrived to delay, hinder or defraud creditors, or others, of their just and lawful actions, suits, debts, accounts, damages, &c., utterly void. So that though the plaintiff might have brought himself within ' that statute, and have been permitted to contest the conveyance to the defendant as fraudulent, it would by no means follow that he would be entitled to maintain the present suit.

The just debts or demands referred to in § 49, are such debts or demands as a creditor has, and such alone. The word demand, though a word of large signification, must be construed in connection with the rest of the sentence, and cannot be considered as enlarging the meaning of the words just debt, so that they should embrace torts, or creditor, so that it should .mean any person having any claim whatsoever.

In Fox v. Hills, 1 Conn. 295, the statute of Connecticut against fraudulent conveyances, which provides that all fraudulent conveyances, &c., made to “ avoid any debt or duty of others,” as against the party whose debt or duty is endeavored to be avoided, should be utterly void, received a judicial construction. It was there held that duty was commensurate with debt, and that a tort would not be embraced within the statute.

We can only judge of the intention of the Legislature by the language in which it is expressed. Words are to receive their ordinary and accustomed signification. An unwonted and unusual meaning is not to be attached to them, unless required by the most unmistakable indications that such was the Legislative purpose. If the Legislature had intended to confer a right of action upon one situated like the plaintiff, a few words only were necessary to render such intention most evident. It can hardly be conceived that they would have been thus sparing in their use of language. We think the plaintiff cannot, without a manifest and palpable disregard of the usages of speech, be considered as having been a creditor of Willa at the time of his fraudulent transfer of his property to the defendant. Not having been a creditor then, he cannot maintain this action. Thatcher v. Jones, 31 Maine, 528.

It may be expedient to extend the remedial benefits of this statute so as to embrace all causes of action. That, however, is a question for the Legislature, and can afford no aid in its construction. Plaintiff nonsuit.

Shepley, C. J., and Tenney, Rice and Hathaway, J. J., concurred.