Pettit v. Candler , 3 Wend. 618 ( 1829 )

The Chief Justice

expressed his concurrence in 'the opinion delivered by Mr. Justice Marcy. He said he had not examined the main question, not deeming it necessary to the decision of this cause; his impressions however were, that under the existing law, a defendant is not bound to answer as to property which never was within’ the reach of an execution; that he could only be called on to respond as to such property which had been fraudulently withdrawn from the operation of an execution.

Mr. Justice Sutherland also concurred in the opinion delivered by Justice Marcy, but declined expressing an opinion as to the point alluded to by the Chief Justice.

Mr. Senator S. Allen.

The appellant insists that he has answered the points excepted to as far as he was bound and compelled to answer; and that he was not bound to disclose his interest in any public stock er stocks, ot choses in action, and the nature, amount and value of all his claims, liquidated and unliquidated.

There are several cases in which the principle has been clearly recognized, that a court of chancery has the power to compel the discovery of personal property, placed by the debtor beyond the reach of legal process ; and I am unable to discover any good reason, and the counsel for the appellants has adduced none, why public stocks, notes of hand, bonds, or debts of any kind should be exempt from execution any more than other estate whether real or personal, or why the effect of a judgment should be defeated while the debtor may be in possession of a large property of the kind alluded to.

That the principle of-compelling a discovery and account of such property has been acted on by our equity courts, appears from the case of Hendricks v. Robinson, (1 Johns. Dig. 205,) where it was held, that chancery will lend its aid to a judgment creditor, by compelling a discovery and account against a debtor or third person, who had possession of the debtor’s property, and -placed it beyond the reach of legal process. The same is the case of Hadden v. Spader, and so important has the principle been deemed by the legislature that it has been incorporated in the revised statutes, which go into effect on the first of January, 1830.

The justice and equity of this rule appears to me indisputable, for what can be more reasonable than that every man possessing the means should pay his honest debts; and if he possess the means, and place them in a situation beyond the reach of legal process, is there any injustice in compelling him to render an account of the property thus fraudulently concealed 1 The provisions of the insolvent laws of this state, and the practice under them, gives good reason to fear that acts of concealment are by no means uncommon, and it is of importance to the morality of the community that our courts of equity should be sustained in their endeavor to arrest this growing evil. My opinion is, that the order of the chancellor was proper and ought to be affirmed.

Mr. Senator Benton expressed his concurrence in the opinion delivered by Mr. Justice Maecs, but declined expressing any opinion upon the question whether a defendant could be compelled to answer .as to stock, notes and other cboses in action.

This being the unanimous opinion of the court, the order of the chancellor appealed from was thereupon affirmed.