author: Ellsworth, J.

text:
    Harvey vs. Mix.
    A conveyance of property, made in 1851, by a copartnership in failing circumstances, with a view to insolvency, authorizing the grantees, “ to pay, from time to time, in the process of settling up our affairs, such just claims, not herein before mentioned, of other persons against us, as said vendees may deem it prudent and proper to settle,” and also conditioned that such conveyance should be void on the failure of the grantees to pay certain notes therein mentioned, is in violation of the act against fraudulent conveyances, nowin force, (Rev. Stat. tit. xx. § 1,) '"and also of the additional act of 1828, and is therefore void.
    A technical informality, in a conveyance of property in trust, is not necessarily an obstacle to the grantee’s appropriating the property conveyed, to the discharge of the grantee’s liabilities, agreeably to the directions, contained in the conveyance.
    Where a copartnership in September 1851, conveyed certain property in trust, by an instrument, which was void, as against the creditors of the grantors, and the trustee proceeded to appropriate the proceeds of a part of the property conveyed, agreeably to the directions of the conveyance, and in the next October, one of said grantees assumed the control of said property, by agreement with the other grantees, and in December following, purchased the property conveyed, then on hand, and paid for the same ,and in May, 1852, in an action against said copartnership, the plaintiff garnisheed such purchaser as the trustee and debtor of said copartnership ; it was held, that the garnishee was not liable.
    In a scire facias, in a process of foreign attachment, evidence is not admissible to show that a garnishee, described in the original process as the debtor of a copartnership, is the debtor of an individual member of such copartnership.

      This was a scire facias in a process of foreign attachment, setting forth a judgment, obtained by the plaintiff, against Hosea B. Harvey, Samuel J. Root, William Needham, and Walter W. Scovill, partners, .under the firm of Harvey, Need-ham, Root & Co., before the city court, for the city of New Haven, holden on the 8th day of May, 1852, in an action of book debt.
    The present defendant was described in the original writ, and also in the scire facias, as the trustee and debtor of said copartnership.
    The cause was appealed to the superior court, and tried at the term, holden in October 1855.
    Upon the trial, the plaintiff claimed to have proved, that on the 1st day of September, 1851, Harvey, Needham, Root & Co., manufacturers of iron work in the city of New Haven, being in failing circumstances, and compelled, by the service of various attachments upon their property, to close their manufacturing establishment and suspend their business, and owing, among other creditors, the defendant Mix, about fifteen hundred dollars, and to John Bromham, about six hundred and fifty dollars, and to Lewis B. Judson, about two hundred and thirteen dollars, and to Peck & Harrison, about one hundred and seventy-three dollars, with a view to their insolvency, executed the following instrument in writing, and on the same day delivered the same to the grantees named therein, of whom the defendant was one.
    “ Whereas we, Harvey, Needham, Root & Co., of the town and county of New Haven, are indebted to divers individuals, and in consequence of the service of several attachments upon us, are greatly embarrassed in our business : and whereas we are anxious to settle as speedily as possible all just claims of our creditors, upon us, and to obtain relief from our embarrassment without unnecessary delay, now, in consideration of our indebtedness to John Bromham, Jas. T. Mix, LewisB. Judson, and Lucius G. Peck, and Henry B. Harrison of said town, that is to say, of the several debts due from us to them respectively, we have bargained, sold and conveyed, and hereby do bargain, sell and convey to said Bromham, Mix, Judson, Peck and Harrison, all our right, title, and interest in, and to each and all, the engines, implements, tools, machinery, lathes, finished and unfinished, stock and personal property of every description whatsoever, now situated in and about the buildings and premises now occupied by us in Artizan street, in said town, to have and to hold to the said vendees and their assigns forever, upon the conditions hereinafter stated, and we further transfer, assign and convey to said vendees upon the same condition, all notes, claims, demands and dioses in action and rights of action, by book or otherwise, which we have and hold against any and all persons, and we hereby authorize and empower the said vendees, by their agents, the said Peck and Harrison, to finish up all unfinished lathes and other work yet unfinished, herein conveyed as aforesaid, and to sell the same when finished, and to sell and dispose of, as they may see fit, all the articles herein conveyed and to employ all necessary and suitable materials and labor in so preparing said materials for sale, so as to make them sell to good advantage. And we authorize said vendees, by their said agents, from the proceeds of said sale, to appropriate to themselves such sums as will fairly defray all expenses for material, labor and services which may from time to time be incurred by said vendees in the progress of settling up our affairs, and we further authorize them after making such appropriation, 1. To pay, settle and discharge all just claims of the different individuals, other than said vendees, who have issued attachments against us, so as to free us from all liability to them whatsoever’. 2. To pay, settle, and discharge all just claims which our workmen have against us, so as to free us from all liability and responsibility to them whatsoever. 3. To pay, settle, and discharge, all just claims which said Bromham has against us, so as to free us from all liability or responsibility to him whatsoever. 4. To pay, settle, and discharge all just claims which said Mix and Judson have against us, except four notes for $1375 each, secured by mortgage to said Mix, so as to free us from all liability or responsibility to either of them whatsoever. 5. To pay, settle, and discharge all just claims which said Peck and Harrison have against us, so as to free us from all liability or responsibility to them whatsoever.
    And we further authorize them to pay, from time to time, in the progress of settling up our affairs, such just claims, not hereinbefore mentioned, of other persons against us, as said vendees may deem it prudent and proper to settle.
    The condition of this instrument is such, that whereas we are legally bound to pay said Bromham a certain note, drawn by Meshurul & Harvey, for the sum of five hundred dollars payable to said Bromham or order, which note fell due and was taken up by said Bromham, August 29th, 1851, and a certain other note, dated June 20th, 1851, drawn by us, payable to said Bromham or order, three months from date, for the sum of one hundred and fifty dollars; and whereas we are indebted to the said Judson in the sum of two hundred and thirteen dollars and thirteen cents, by our note, dated June 9th, 1851, payable to his order three months from date, and in the two separate sums of four hundred and eighty, and two hundred dollars by our notes, dated July 3d and July 28th, 1851, respectively, payable to his order on demand, and in the further sum of sixty dollars for said Judson’s order on T. Benedict & Son, and in the further sum of one hundred dollars for said Judson’s order on J. S. Arnold, and in the further sum of three hundred and thirty dollars, due to him from us by book; and whereas, we are legally bound to pay to said Mix, two notes drawn by Meshurul & Harvey, for the sums of three hundred and forty-nine dollars and fifty-eight cents, and seven hundred dollars respectively, both payable to said Mix’s order, both dated January 27th, 1851, the one payable in four, and the other six months from date; and whereas, we are indebted to said Mix by book, in the sum of four hundred and eight dollars and thirty-three cents; and whereas, we are indebted to Peck & Harrison aforesaid, in the sum of one hundred and seventy-three dollars and two cents as nearly as the same can now be ascertained.
    Now if we shall well and truly pay to said vendees and mortgagees, all said notes, and debts, and discharge all our aforesaid liabilities to them, then this bill of sale shall be void, otherwise not.
    Dated at New Haven, this 1st day of September, 1851.” At the time of the execution of this instrument, the defendant held a mortgage upon a portion of the machinery, and implements of manufacture, in said establishment, which was given to him on the 27th of January, 1851, by Meshurul & Harvey, the then owners of said manufacturing establishment, to secure their four several notes for $1375, each of that date, and payable to said Mix, in one, two, three, and four years from their respective dates—which notes and mortgage were the same referred to in the aforesaid instrument of September 1st, 1851.
    Upon the execution and delivery of said instrument, Sept. 1st, 1851, as aforesaid, the grantees, by their agents, Peck & Harrison, entered into possession of the property described therein, and by virtue of the powers therein granted to them, proceeded with the manufacture of the stock on hand, the sale of the manufactured goods and the collection of debts, appropriating the avails thereof in payment of the expenses of carrying on said business, and in settlement of the claims of the attaching creditors, and in partial payment of some of the workmen, who held claims against the said Harvey, Needham, Root & Co.
    Said property remained under the direct management of Peck & Harrison, until on or about the 25th of Oct., 1851, when Mix, with the consent of his co-grantees, took upon himself the direction of the business and control of the property, and continued to hold the same in his hands, accounting to Peck and Harrison as agents of the grantees for his management, until about the 10th of December, 1851, on which day, the defendant claimed to have proved, that the following agreement was entered into between the defendant and Hosea B. Harvey, one of the copartnership of Harvey, Needham, Root & Co., he acting therein, in behalf of said co-partnership as the defendant claimed, but which the plaintiff denied.
    “ It is agreed between us that said Mix will purchase of said Harvey, certain property of his, now in Artizan street, being in the hands of mortgagees, viz : all his lathes, planer’s tools and such shafting and pullies as are connected with said articles, the patterns and flasks, stock and materials and new work. Said Mix does not agree to take only such as may be at his option, but all and any that he does take will be at the appraisement of William Douglass, of Middletown, and Sylvester Colburn, of Birmingham ; if said Douglass and Colburn cannot agree upon the appraisement of any of the articles, they are to select the third person and he shall agree with them in price of said property. If the property that said Mix does take is not sufficient to pay his claims, and others that he does assume, then he is to take as much of said property as will make up the amount, after collecting what claims he chooses for work that has been done under the mortgages, besides the claim of G. W. Phipps & Co., and James Clark, both of New Haven. It is further agreed that the said Harvey shall give up all right, title and interest to said shop, and shall cease to work only at the option of said Mix, and to remove all and every kind of articles that will not belong to said Mix, but said Mix shall accommodate said Harvey, and use his best endeavors to have all transactions between said parties fair and honorable, and that all settlement between said Harvey and Mix shall be settled without any delay. Mix agrees to take the blacksmith shop and tools therein, all the machines, tools in use, foundry tools and fixtures.”
    It was not denied that an inventory was taken, pursuant to said agreement, and by the appraisers therein named, of the property then in the hands of said Mix as aforesaid, which inventory amounted in the aggregate to the sum of $10,836.53, that said Mix thereupon charged himself and credited said firm on his books with the amount of said inventory ; that said firm of Harvey, Needham, Root & Co., discontinued business, and were discharged by said Mix and ceased to labor for him, or have anything to do with said property, and said Mix assumed, and had the entire possession and control of the same.
    The plaintiff' claimed to have proved that this agreement, of December 10th, 1851, was ancillary to the prior instrument of September 1st, and designed to be in furtherance of the objects of said original instrument, and was solely to provide for the continued possession of said property by the defendant, with the same rights and the same obligations as were imposed upon all the grantees, by the aforesaid instrument of Sept. 1st; that nothing was done, under or by virtue of said agreement, to change, or in any way affect the possession of said property by the defendant, as it continued to be ever since he received it from Peck & Harrison as aforesaid, and that the defendant, in fact, continued in possession of said property, under said instrument of Sept. 1st, 1851, until after the 8th day of May, 1852, when he was copied in the original suit of the plaintiff-against Harvey, Need-ham, Root & Co., which was denied by the defendant, who claimed to have proved that the same had been applied in payment of the indebtedness of Harvey, Needham, Root & Co., to the defendant, prior to the 8th day of May, 1852. But it was admitted that on the 16th day of March, 1852, the grantees, in said instrument of Sept. 1st, other than the defendant, namely, John Bromham, Lewis B. Judson, and Peck, and Harrison, executed and delivered to the defendant, an assignment of all their interest as mortgagees in the property conveyed to them by Harvey, Needham & Co. And the defendant claimed to have proved that the consideration for said assignment to the defendant, was the assumption by him of the debts therein mentioned, which debts were, in the case of John Bromham, the same as that described in the condition of the instrument of Sept. 1st, 1851; and in the case of Lewis B. Judson for the amount, (about $213) due to him by Harvey, Needham, Root & Co., at the time of the execution of the instrument of Sept. 1st., and the balance for cash advanced, and materials furnished, by said Judson in the prosecution of the work, since said 1st of September; and, in the case of Peck & Harrison, for the amount of the balance due them upon their account with said property in their agency as aforesaid ; and these debts, the defendant claimed to have proved, he did, in fact, upon the delivery of said assignment to him, assume, by giving his notes to said Bromham, Judson and Peck and Harrison, at three and four months, for the amount of their respective claims as aforesaid, which notes were subsequently, and on maturity, paid by him.
    The defendant further claimed to have proved,thatthe value of the property which came into his hands as aforesaid, and which, or the avails of such portion thereof as had been disposed of, remained in his hands, and which he claimed had all been applied in part payment only of his indebtedness aforesaid, when he was copied in the writ of the plaintiff against said Harvey, Needham, Root & Co., as aforesaid, was less than the amount of the claims held by him as aforesaid, and that after charging himself with said property and avails, and crediting himself with all his individual claims against the same, including his charges for cash and materials advanced in the prosecution of the work under the instrument of Sept. 1st, 1851, and the debts assumed by him as aforesaid, at the time he was copied, there was left a balance, in his favor, of $31.31.
    It was admitted that the plaintiff was a creditor of said Harvey, Needham, Root & Co., at the time of their execution of the instrument of Sept. 1st, on account of services as a workman in their establishment.
    Thereupon the plaintiff claimed that the court should charge the jury that, if they found the facts as the plaintiff claimed them to have been proved as aforesaid, said instrument of the 1st of September, 1851, was fraudulent in law, and utterly void as to creditors, and that it was so. 1. By the original act against fraudulent conveyances, and 2. By the additional act of 1828. And that if they found the instrument of 10th Dec., 1851, to have been ancillary to the instrument of Sept. 1st, 1851 aforesaid, and in furtherance of the same, that it would not relieve the said instrument, of Sept. 1st, 1851, from its original infirmity and illegality— and that if any of the property, assigned to the defendant by the instrument of Sept. 1st, 1851, over and beyond what had been covered by prior mortgages, was in the hands of the defendant on the day when he was copied in the original suit, that such property was holden to respond to the plaintiff’s judgment recovered against said Harvey, Need-ham, Root & Co., on which judgment the present scire facias against the defendant was founded.
    And the plaintiff further claimed that the court should charge the jury, that such would be the case, though they should also find that the defendant, prior to his having been copied as aforesaid, had advanced money and materials in the prosecution of the business authorized by said instrument of Sept. 1st, and had assumed debts due by said Harvey, Needham, Root & Co., as aforesaid, to an amount, including his own claims against said firm, greater than the value of the property received by him, under said instrument of Sept. 1st.
    But the defendant claimed if the jury should find that the aforesaid claims of the defendant and of said Bromham, Judson, and Peck, and Harrison, respectively against said estate, were bona fide claims, and that he had assumed the payment of them, and applied the property in payment thereof, and that they amounted in the aggregate to more than the property in his hands, as aforesaid, when he was copied by the plaintiff, that no part of the property, so held by him, was liable to respond to the plaintiff, but that he had a right to apply the same upon such indebtedness, in discharge thereof, to the extent of its value.
    And the defendant further claimed, that [said instrument of Sept. 1st, 1851, and said instrument of Dec. 10th, were good and valid instruments, not only as between the parties, but as against the creditors of the said firm of Harvey, Needham, Root & Co., and that the court should charge the jury, pursuant to his claims as aforesaid, if the jury should find that the same were made without any fraudulent intent.
    The court thereupon charged the jury that said instrument of the 1st of September, 1851, if made by Harvey, Need-ham & Co., with a view to their insolvency, and while in failing circumstances, was void as against creditors.
    And in respect to the other claims of the parties, the court submitted to the jury the questions, whether there was any fraud, in fact; whether the defendant Mix obtained or retained possession of the property, with any fraudulent intent to hinder, delay, or defraud the creditors of Harvey, Needham, Root & Co., or whether he so obtained, and retained, possession under the agreements of Sept. 1st, and Dec. 10th, in good faith, and for the purposes therein specified; and also the question whether the ■ agreement of Dec. 10th was the act of the firm and binding on them; and thereupon charged them further as follows:
    For the purposes of this case, I instruct you that if you shall find that there was no fraud in fact, and that the defendant, on the 8th day of May, 1852, when the copy was left in service, had in his possession no other property than such as he has admitted by his account, and had prior to that time, under and pursuant to the trust deed of Sept. 1st, 1851, or the ancillary agreement of Dec. 10, 1851, (if you shall find the last agreement to be the act of the firm,) paid expenses incurred, and debts due from said firm thereby provided for, to an amount, which, including the bona fide claims of the defendant against said firm, equalled the property, or avails of property, received from them under said agreement then in his hands, he is not liable, the plaintiff is not entitled to recover in this action, and your verdict should be for the defendant.
    The plaintiff, upon the trial, offered to prove that when the defendant was copied in the original suit by him against Harvey, Needham, Root & Co., the defendant had in his hands, concealed so that the same could not be attached, property belonging to Hosea B. Harvey, one of the said co-partnership of Harvey, Needham, Root & Co.; but to this the defendant objected, upon the ground that the defendant was not described, either in the original process, or in the scire facias as the debtor of said Hosea B. Harvey, or as having his goods or effects in his hands, but was only described both in the original process and in the scire facias, as the debtor of the copartnership of Harvey, Needham, Root & Co., and as having in his hands the goods or effects of said copartnership. And the court sustained the objection and excluded the evidence.
    The jury, having rendered a verdict in favor of the defendant, the plaintiff moved for a new trial.

      R. 1. Sf G. R. Ingersoll, in support of the motion.

      First, As against the plaintiff, a creditor of Harvey, Need-ham, Root & Co., at the time of its execution, the instrument of September 21, 1851, was fraudulent and utterly void, and the parties to it could derive no special benefit from its provisions.
    I. It was thus fraudulent and utterly void, by force of the statute of 1828, relating to fraudulent conveyances. Rev. Stat., 507.
    It appears upon its face to have been executed,
    1. By a party “ in failing circumstances with a view to insolvency.” 2. And not for the benefit of “ all their creditors, in proportion to their respective claims,” and 3. For the purpose of creating “ a trust” for a portion of their creditors.

      The four vendees are jointly constituted trustees, not only to pay certain debts of “ individuals other than the vendees,” as attaching creditors, workmen and others, whose claims “ said vendees may deem it prudent and proper to settle,” but they are also made, jointly, trustees for each other severally, in the order specified; a species of trust which has recently been under review in this court, and distinctly decided to be in violation of the statute of 1828. Goodell v. Williams, 21 Conn. R., 419.
    II. This infirmity of the instrument is not relieved by the condition attached to it.
    1. The statute has, in view, indirect as well as direct conveyances. The object, sought to be accomplished, is looked after, irrespective of the forms employed to conceal it. Beers, Ex'r v. Lyon, 21 Conn. R., 605. Now the purpose of this instrument was unquestionably to create the fraudulent trust already pointed out. Possession of the property was taken and its avails for a time appropriated in strict pursuance of the powers raising the trust. The parties never treated it otherwise than as a trust instrument; and the defendant, at the time he was copied, assumed it to be such, by charging the property, in his account with it, with the debt paid, and expenses incurred by himself and his co-grantees, in carrying out the trust provisions óf the instrument.
    2. But there is nothing in this condition to prevent the full operation of the trust. The bill of sale was to become void, on the debts to the four vendees being paid. But these debts, by its provisions, were not to be paid until after the other trusts had been executed. The condition was not to operate until after all the creditors, provided for, had been paid. Then the trust powers weie to determine, in order that the surplus property, if any remained, might return to the assignors. In Bates v. Coe, 10 Conn. R., 280, a case relied on by the other side to show that a mortgage is not a conveyance, it was distinctly decided that the mortgage, then in question did not raise a trust. Had a trust been found, it can hardly be doubted, from C. J. Daggett’s opinion, that the instrument would have been held “ utterly void.” Upon any other principle the statute is rendered practically nugatory.
    III. But independently of the statute of 1828, this instrument is fraudulent and void, as against the plaintiff-, being “ calculated to hinder, delay and defraud creditors.” Act against fraudulent conveyances, Rev. Stat., 570. Pettibone v. Stevens, 15 Conn. R., 24. 1. It vests in the trustees a sweeping authority, “ to pay from time to time in the process of settling up our affairs such just claims, not hereinbefore mentioned, of other persons against us, as said vendees may deem it prudent and proper to settle.”
    An unlimited discretion is thus given to the trustees to pay, or to refuse to pay, such of the creditors here mentioned, as they may please. They have not only the power to “ hinder” and “ delay,” but wholly to refuse. An assignment, reserving to the debtor himself the right of determining which of his creditors his trustee should pay, would manifestly be invalid. Can he then confer such a power upon his assignee ?
    2. But the trustees are also authorized “ to sell and dispose of, as they may see fit, all the articles herein conveyed.” Within the scope of this authority the trustees could sell the assigned estate on credit. But a sale on credit, by a trustee, is regarded, in judgment of law, as such a “ hindrance” and “ delay” to creditors, that an assignment conferring upon a trustee such an authority is, upon this principle, invalid. Nicholson v. Leavitt, 2 Selden, 517.
    Secondly, The instrument of Dec. 10,1851, was merely subservient to—in aid of—the original fraudulent trust. It was, in the language of the court below, “ ancillary” to that of Sept. 1st, 1851. Its basis, being therefore fraudulent and void as against creditors, the whole must be of the same character. Merrill v. Meacham, 5 Day R., 341. The court, in the charge to the jury, very properly assumed that the property was received and held by the defendant, “ under said agreement” of Sept. 1st, 1851. Indeed, that portion of the property, being cash received from the debts and dioses in action, belonging to the firm at the time of their assignment, was not comprised within the provisions of this instrument of Dec. 10th, and, of course, only affected by the instrument of Sept. 1st. But in any event, the court should have charged the jury, whether the legal effect of this instrument was binding on the partnership, or not. Instead of that, it was left as a question of fact for the jury, to “ find the last agreement to be the act of the firm.” Each partner may undoubtedly, in the partnership name, dispose of the partnership property, for all purposes within the scope and objects of the partnership, and in the course of its trade and business. Sto. Part. § 90, 101. 1 Sw. Dig., 338.

      Thirdly, The court charged the jury, that notwithstanding the instrument of Sept. 1st, 1851, was fraudulent and utterly void as against creditors, still, if the ' defendant, as trustee, had, before he was factorized, paid debts, provided for by that instrument, and expenses incurred in carrying out the trust, to an amount which, together with his own debt against the firm, equalled the property then in his hands, the property would not be liable to the plaintiff’s attachment.
    Upon this principle, the execution of a fraudulent trust cures its original infirmity, and nothing is in the way of an insolvent debtor’s placing his property in the hands of a favorite trustee, for the benefit of such creditors as that trustee “ may deem it proper or prudent” to pay, but the risk of its being discovered before the object is accomplished. The great objects of this statute, which are to provide a responsible trustee, who shall manage the trust under the eyes of the creditors, and to appropriate the trust property for the equal benefit of all the creditors, are thus entirely frustrated. The case in hand affords an illustration of the evil.
    Decisions may be cited, protecting the trustee under a fraudulent conveyance, where he has, in good faith, appropriated the proceeds of the assigned property, in payment of outside creditors, without notice of the fraud, upon the principle it would seem, that the party has repented of the fraudulent purpose.
    But where the trustee himself seeks, as against an innocent creditor, to charge the property in his hands with not only the debts he has paid, and expenses he has incurred in the execution of the fraudulent trust, but also with the payment in full of himself and his co-trustees, principals in the fraudulent conveyance, there is no repenting of the fraudulent purpose. It is indeed accomplishing the very thing which the statutes and the common law say shall not be accomplished. Creditors have been “ hindered” and “ delayed,” and their debts “ avoided.” Pettibone v. Stevens, 15 Conn. R., 24. Crowninshield v. Kittridge, 7 Met., 520. Harris v. Sumner, 2 Pick., 129. Riggs v. Murray, 2 John. Ch. R., 582.
    The plaintiff should have been allowed to prove that the defendant, at the time he was copied in the original suit, had in his hands the property of Hosea B. Harvey, one of the copartnership debtors. The name of each member of the copartnership having been set forth in the original writ, the private estate of such member was liable to be attached by the officers, though the suit was against the copartnership. Rev. Stat., 56. Although the judgment was rendered against the copartners, the execution, issued thereon, could have been ¡evied upon the individual property of the copartners, they having all been particularly named in the declaration. Rev. Stat., 113. If, therefore, the individual property of Harvey had not been concealed by the defendant, it could have been attached and applied to the satisfaction of the plaintiff’s judgment. And when the copy of the writ, authorizing the attachment of this property, was left with the defendant, “ and therein averring that the said James T. Mix had con-concealed in his hands the goods, effects and estate of the said defendants, so that they could not be come at to be attached,” it was sufficient notice to him that all the property which, by his concealment, he had prevented the officer from attaching in that suit, against the said defendant, would be required of him to satisfy the final judgment.
    A debt, due to one member of a copartnership, cannot, it is admitted, be secured in a suit against the copartnership, where the person, owing it, is described in the factorizing process, as the debtor of all the copartners. 22 Conn. R., 248. But a “ debt” is not attachable by the general law. It can only be sequestered in this peculiar manner. The factorizing process itself must therefore distinctly describe it, and by that description it is attached.
    In the case of goods, the garnishee is simply made the custodian of them, until they shall be “ exposed” to the officer, to be proceeded against under the general law. They are supposed to be concealed in his hands, so that actual possession cannot be taken of them by the officer. And the object of the copy, left with him by the officer, is to make him the agent of the law, to hold possession for the officer of all the goods and effects in his hands, which are liable to attachment upon the original writ.

      Baldwin and Blackman, against the motion.
    1. The instrument of December 10th, 1851, under which Mix became the absolute purchaser and took possession, in his own right, of the property in question, was a valid instrument, not only as between the parties, but as against the creditors of Harvey, Needham, Root & Co., to convey a perfect title to all the property mentioned in the same, to Mix the defendant.
    2. All the property of Harvey, Needham, Root & Co., conveyed by these instruments, and which came into the hands of Mix, the defendant, under the same, having been bona fide applied, in part payment, only, of the bona fide claims of Mix against this firm, and such as he had assumed and paid, prior to the 8th day of May, 1852, when the copy upon the original process was left in service, Mix was no longer the trustee or debtor, of the original defendants, because he had nothing then in his hands belonging to them. Sanford v. Wheeler, 13 Conn. R.,167. Hutchins v. Sprague, 4 New Hamp., 476. Thomas v. Goodwin, &c., 12 Mass. R., 140.
    3. By the finding of the jury, Mix, the defendant, has accounted for all the property of Harvey, Needham, Root & Co., which had come into his hands, prior to the service of the trustee process.
    4. Neither the instrument of September 1,1851, nor that of December 10,1851, nor both together, are affected by the statute of 1828, nor by the original act against fraudulent conveyances. A mortgage is not a trust. Bates v. Coe, 10 Conn. R., 280. The consideration of the deed of September, 1851, was the indebtedness of Harvey, Needham, Root & Co., to the grantees. The case of Goodell, et ux, v. Williams, 21 Conn. R., was an absolute deed, without any condition to be void.
    5. The defendant, being described only as the debtor of the firm of Harvey, Needham, Root & Co., in the original process, and in the scire facias, and not being described in either, as the debtor of Hosea B. Harvey, or' as having his goods or effects in his hands, evidence to prove that the defendant had the goods, or effects, of said Harvey in his hands, at the time of the service of the original process, was inadmissible in a suit charging him as the debtor of the firm. McBride, Sheldon, &c., v. The Protection Ins. Co., 22 Conn. R., 257-8.
   Ellsworth, J.

Several questions are made in this case, which we shall not comment upon at length, as there is one, which in our view of the case, is decisive. The assignment of the 1st of September 1851, undoubtedly, is open to very serious objections, growing out of the general law of fraudulent conveyances, as well as the law of 1828. The liberty granted to the assignees, to dispose of the property as-' signed, “ as they saw fit,” and “ pay such other debts besides those named in the assignment, as the assignees may deem it prudent and proper to settle,” are provisions which clothe the trustees with extraordinary and exceptionable powers, which, almost of necessity, hinder and delay creditors in collecting their debts. 3 Kernan, 218. But the most obvious objection to the assignment is, that it is in trust for creditors, and not made for their common, and equal benefit. Such a defect makes the assignment utterly illegal and void. To meet this objection, it is said that the assignment is a mortgage, and therefore a good conveyance according to the case of Bates v. Coe, 10 Conn. R., 280. But the doctrine of that case does not go to this extent; and that decision would not have been made as it was, if the court had not held, according to their view of the deed, that it was not a deed in trust, but merely a conditional, and bona fide conveyance; and even in this conclusion to which the court came, some have thought that the court mistook the law and essentially impaired the value of the statute of 1828; but be that as it may, the present assignment was one, avowedly in trust, and not being for the equal benefit of all the assignor’s creditors, is of no force or validity.

But the defendant insists that afterward, on the 10th day of December, 1851, he bought the property in question, and thereby, and before he was copied as the debtor of Harvey, Needham, Root & Co., acquired a new and perfect title to it, and so, on the 21st of September, 1852, the day he was copied, he had nothing in his hands which belonged to Harvey, Needham, Root & Co., nor owed them anything for what he had received from them.

The true character of this purchase by the defendant is the chief question in the cause, and the ground upon which the defendant mainly rests his defence. If the sale was a good one, the defence is complete; if not, there is no defence on the merits, and the defendant is liable to the plaintiff. The plaintiff denies the supposed sale, and if made in fact and in form, he denies the consideration pretended, and further he insists, that the sale, if made, was not made by-Harvey, Needham, Root & Co., but by one of the partners, in his own name, and that no one of the assignees could acquire a good title by a subsequent purchase against any of the creditors of Harvey, Needham, Root & Co. The defendant takes issue upon all these questions of fact and of law. Under the charge of the court, the jury have found, that there was a bona fide sale to him in December, 1851, as claimed by the defendant; that he paid for the goods at their valuation, $10,836.53, which money was applied to cancel the debts of Harvey, Needham, Root & Co., and that although the business was done by Harvey, it was done for the benefit of the company, and that throughout the entire proceedings, there was no unfairness or fraud. We do not see any thing wrong in the charge of the court, on these questions. Certainly one partner could sell the partnership property for the purpose of paying company debts, and the form of the sale, whether in the company name, or in the name of the remaining and active partner, could not be material, if the sale was intended to be, and was in fact for the benefit of the company, as the jury have found it was. The company could sell their property in December, notwithstanding their ineffectual assignment of September previous; but if no sale had been made, and the title of the property had remained in Harvey, Needham, Root & Co., under the defective assignment, until the defendant had been served with the copying process, the defendant doubtless would now be liable as holding their property. Before the defendant was copied, could he not have re-delivered the property to Harvey, Needham, Root & Co,? could they not have sold it to whomsoever they pleased ? could they not have given to purchasers, or creditors, good and valid orders for its avails upon the assignees ? and if so, why could not the defendant, a bona fide creditor, become a purchaser of it, or apply it, under the directions of the representative of Harvey, Needham, Root & Co., in payment and satisfaction of company debts ?

An assignment, which is defective and void because of some technical informality, is not of course an obstacle to the assignee’s appropriating the property, before he is copied, in payment of the assignor’s creditors, according to the directions given in the assignment, and such payments would be a good accounting, whoever might afterward sue the assignee, for the property. And this principle, we think, is quite sufficient to uphold this defence, which in its essential particulars, does not vary from that case; and the idea put forth, on the argument, that the principle does not apply where the assignment was not bona fide, but was mala fide, (if any such distinction there be,) is not material to the present case, for the jury have found, there was no moral wrong or evil intent, in making the assignment of September, 1851. If this be so,!.! we ask, why could not the defendant make an outright purchase of the property, and thereby acquire a new and good title, if he conducted fairly, and paid for the property, a good and adequate consideration ? Nor can we perceive, if the assignment was conceded to be fraudulent in fact, why such an assignee could not abandon the assignment of a creditor, and take a new title for his good debt. In Sanford & al v. Wheeler, 13 Conn. R., 165, and Weedon v. Hawes, 10 Conn. R., 50, this court held, that a mortgage-deed, given to secure good debts and bad debts, was not entirely void, if the mortgage was not made with an actual intent to defraud, or delay, creditors; much more must it be true, in such a case, that a new and unexceptionable deed for the payment of the good debts will be sustained, if the property does not exceed their amount. In Thomas v. Goodwin, and his Trustee, 12 Mass., 142, the trustee, who had received property under a suspicious assignment, was copied by a creditor of the assignor, after he had applied the avails of the property, which had been in his hands, according to the directions of Goodwin, the assignor, and he was held not liable. The defendant set up this application of the money as his defence, and it was sustained. Parker, Ch. J., says; “ under this declaration the defendant cannot be charged as the trustee of Goodwin, notwithstanding the original transaction between them. In this process, the condition of the parties, at the time of the service, must be looked at, and although previously to that time, the person, summoned as trustee, may have received the property of the debtor' under circumstances which would render him liable, yet if he has since discharged himself of all trust, by delivering back to the debtor the property received, in such manner that it may be attached by his creditors, or if he has paid the proceeds to bona fide creditors of the principal, in satisfaction of their just demands, so that, at the time of service of the writ, he truly has nothing in his hands, he cannot be subjected to a judgment.”

The defendant, being copied only as the debtor of Harvey, Needham, Root & Co., in the factorizing process, and so sued in the scire facias, and not as the debtor of Hosea B. ' Harvey, evidence that he was the debtor of Harvey, or had Harvey’s goods in his hands, was inadmissible, as was decided in McBride, Sheldon & Co. v. The Pro. Ins. Company, 22 Conn. R., 287-8.

We advise judgment for the defendant.

In this opinion, the other Judges, Storrs and Hinman, concurred.

New trial not to be granted.


source: Caselaw Access Project

author: Hinman, J.

license: Public Domain

text:
    Hart and another vs. Carpenter.
    B. took the plaintiff’s cow into his possession, under an agreement, that he should he paid for her keeping, by the milk she would yield, and if, at any time within four months, he should pay the plaintiff thirty-five dollars, the title to the oow should vest in him. B. did not pay for the cow, but sold and delivered her to the defendant, who bought her in good faith, supposing her to be the property of B. In an action of trover against such purchaser, it was held that the plaintiff was entitled to recover.
    This was an action of trover for a cow.
    On the trial upon the general issue, it was found that the cow, described in the plaintift’s declaration, was, on the 5th day of November, 1853, the property of the plaintiff. On that day, he parted with the possession of the cow to one Alvin M. Bebee, under an agreement in writing, as follows :
    “ Know all men by these presents, that I, Pearl Carpenter, of the town of Derby, do hereby enter into the following agreement with Alvin M. Bebee, of said Derby, to wit: I, the said Carpenter, do hereby agree to and with the said Beebe that he, from the date of this instrument, a certain cow, five years old last spring, of a lightish red color, the property of said Carpenter, of the value of thirty five dollars, shall take into his, said Bebee’s possession, and shall keep and fodder, paying himself therefor from the milk and butter said cow shall make and yield, and if at any time within four months, or at the expiration of four months from the date of this instrument, the said Bebee shall pay for said cow the sum of thirty-five dollars, then on said payment, the title of said cow shall vest in said Bebee, but if, within said time, said Bebee shall not pay said amount to said Carpenter, the said Bebee is to return said cow in good condition. Dated at Derby, November 5,1853.
    Pearl Carpenter,
    Alvin M. Bebee.”
    Afterward, and while said cow remained in the possession of Bebee, under said agreement, and before Be-bee had ever paid anything to Carpenter under said contract, to wit, on the fifteenth day of February, 1854, Bebee sold said cow to the defendants, who bought the same in good faith, for full value, supposing her to be the property of said Bebee, and not knowing of said contract, or that Carpenter had any claim to said cow, and without making any enquiries of said Bebee as to his title to the cow. Said Bebee never paid said sum of thirty five dollars, or any part thereof, to the plaintiff. Afterward, on the 10th day of March, 1854, the plaintiff demanded said cow of the defendants, but they refused to deliver her to him, and converted the same to their own use.
    The court, upon the facts aforesaid, rendered judgment for the plaintiff' to recover thirty six dollars and fifty cents, the value of the cow, and costs.
    The defendants, by motion in error, thereupon brought the case before this court for revision.
    Beach, in support of the motion.
    I. The plaintiff willingly parted with the possession of his property to Bebee, under such a contract that Bebee could sell it, without thereby violating his contract; for he had the option either to return the cow, or its agreed price, thirty five dollars, and the period, during which that option was to continue, had not then terminated. The case is therefore clearly distinguishable from those wherein delivery has been made, or possession obtained by fraud or mistake, as well as from the case of a mere bailee, who cannot sell without thereby violating his contract. Story on Bailment, § 439. Hurd v. West, 7 Cow., 752. Holbrook v. Armstrongs 1 Fair. R., 34.
    II. The defendants, being bona fide purchasers from Bebee, while in possession under such a contract, are protected, even though the sale by Bebee has resulted in a violation of his contract with the plaintiff. An attaching creditor acquires only the rights of his debtor, but the books are full of cases, recognizing additional rights in a bona fide purchaser. Parker v. Patrick, 5 Term. 175. Loud v. Greene, 18 M. & W., 216. White v. Garden, 5 E. L. & Eq., 379. Hoffman v. Noble, 6 Met., 68. Johnson v. Peck, 1 Wood & M., 334. Gilbert v. Hudson, 4 Green., 347.
    III. The same policy of the law, which regards the retention of possession by a vendor as conclusive evidence of fraud, will eventually compel courts to adopt the kindred principle that, where the owner of personal property parts with its possession, under a contract which leaves it at the option of the recipient, either to return, or to pay its agreed price, such owner shall not be permitted to enforce his secret agreement, to the prejudice of a bona fide purchaser. Dearborn v. Turner, 16 Maine, 17. Burwell v. Bickwell, 17 Maine, 344. Perkins v. Douglass, 20 Maine, 317.

      Wooster, contra.
    The plaintiff was entitled to the possession of the cow, at the time of the conversion by the defendant, unless he parted with his title, by virtue of the contract recited in the motion.
    1. The contract between the plaintiff and Bebee is a mere contract of bailment, for the period of four months. Story on Bail, § 219, 368. There is no other stipulation or agreement in the instrument binding both parties thereto. It is not a conditional sale, and not an agreement that a sale ever shall take place, and in this particular it is plainly distinguishable from the case oí Forbes v. Marsh, 15 Conn. R.,384.
    2. But whether treated as a bailment, with a condition annexed thereto, or a conditional contract to sell in futuro, the plaintiff would part with nothing, and Beebe would acquire no title to the cow, until the fulfilment, or performance, of the condition. The payment of thirty five dollars by Beebe to the plaintiff, was a condition precedent to the vesting of the title inBeebe. The law construes contracts according to the intentions of the parties, and allows men to contract according to their own pleasure, unless contrary to the policy of the law or certain technical rules, for the agreement of the minds of the parties is the only thing the law respects, in contracts. Forbes v. Marsh, 15 Conn. R., 384. Thorpe v. Thorpe, 1 Salk, 171. Barrett v. Pritchard, 2 Pick., 512, Mires v. Solebay, 2 Mod., 242. Barrow v. Coles, 3 Camp., 92. Strong v. Taylor, 2 Hill, 326. Hussey v. Thornton, 4 Mass., 405. 3. The defendants, by purchase from Bebee, could get no title, or right of possession to the cow, as against the plaintiff. They got, by their purchase from Bebee, his warranty of title and only his warranty, and they must look to Bebee on their warranty. The plaintiff lost no title by said sale, and he may reclaim his property in the hands of any person to whom the possession of the same may come, and may maintain this action, against all who shall convert his property, until the plaintiff receives satisfaction. 15 Conn. R., 384. 23 Conn. R., 75. 1 Salk, 175. 2 Pick., 312. 2 Hill, 326. 4 Mass., 405. 8 N. H., 325.
   Hinman, J.

The plaintiff was the owner of the cow, the value of which he seeks to recover in this action, and, by an instrument in writing, dated Nov. 5, 1853, he agreed with Alvin M. Bebee, that Bebee should take her into his possession, keep and fodder her, paying himself therefor, by the milk she should yield, and, if at any time, within four months» or at the expiration of that time, he should pay for her thirty-five dollars, she was to belong to him, otherwise he was to return her, in good condition, to the plaintiff. Bebee took the cow under this agreement, but neither paid for nor returned her; on the contrary, he sold her to the defendants, who bought her, in good faith, supposing that she belonged to him.

We think these facts bring the case within the principle recognized in Forbes v. Marsh, 15 Conn. R., 384. The contract'was’ not a sale to Bebee, either absolute, or conditional, but a méfe letting of the cow to him, for the period of four months, with' the privilege of becoming the purchaser, by paying the stipulated price.

The cases cited, tending to show that a bona fide sale and delivery, by one who has possession, under a purchase, fraudulently procured, will be protected against the claims of the original owner, do not apply to the case. In that class of cases, it seems to be just, that of two innocent men, he should suffer, who, by his actual sale, though fraudulently procured, has put it in the power of another, to appear to the world, as the real owner, rather than he who has relied on such appearances, in making the purchase. ButBebee never appeared to be the owner of the cow, any more than any other bailee of a chattel, may be said to appear to own it. He had possession, and that was all. Had the defendants made enquiry, as in Forbes v. Marsh, it is intimated it should be made in such cases, they would have learned that Bebee had no title. We are of opinion, therefore, that the case was correctly decided in the superior court, and there is no error in the judgment complained of.

In this opinion, the other Judges, Storrs & Ellsworth, concurred.

Judgment affirmed.


text:
    Hatch vs. Spofford.
    The exception in the statute of limitations, which, in computing the time within which an action of account must be brought, excludes “ the time, during which the party, against whom there may be any such cause of action, shall be without the state,” (Rev. Stat. tit. 29, § S, p. 649,) is applicable where the cause of action arose in another state, within which both parties then resided, and so continued to reside, until after such action was brought.
    The declaration, in the above entitled action, alleged that the defendant was the bailiff and partner of the plaintiff, from March 22d, 1819, to November 1, 1852. The defendant having filed a plea in abatement of the plaintiff’s writ, that plea was, by the superior court, in accordance with the advice of this court, (see 22 Conn. R., 486,) adjudged to be insufficient. The defendant thereupon pleaded in bar several pleas, the fifth of which was the statute of limitations, and alleged that there was no open, or current account, between the plaintiff and defendant, within six years next before the commencement of the plaintiff’s suit.
    Replication to this plea, alleging that, for four years of the six, next before the commencement of the suit, the defendant was without the state. In his rejoinder, the defendant averred, that any supposed matter of account and cause of action, of which the plaintiff complained, arose in the state of New York, and that always since they so arose, both plaintiff and defendant had resided and dwelt, and still resided and dwelt in said state, and that the defendant at no time had had any property in the state of Connecticut.
    To this rejoinder, the plaintiff demurred, and the court thereupon reserved the questions of law, arising upon the record, for the advice of this court.

      Baldwin, and R. 1. 8f C. R. Ingersoll, and Beach, for the plaintiff.
    I. That the cause of action, accrued in the state of New York, cannot affect the question raised by the pleadings in this case.
    Remedies upon contracts are to be regarded and pursued according to the law of the place where the action is instituted. Ang. on Limit., § 65. Nash v. Tupper, 1 Cai., 402. Pearsal v. Dwight, 2 Mass., 84.
    The time, mode, and extent of the remedy is governed exclusively by the lex fori. Middlebury v. Hopkins, 3 Conn. R., 473. Woodbridge v. Wright, 3 Conn. R., 527. Atwater v. Townsend, 4 Conn. R., 48.
    II. That the plaintiff is a citizen of New York cannot affect his rights. By the constitution of the United States, and by the comity of all civilized nations, recognized by countless decisions in our own and sister states, a citizen of one state has the right to prosecute his suit in the courts of another state, if his suit comes within their jurisdiction.
    III. That the defendant is a citizen of New York, and was out of this state when the cause of action accrued, and so remained until within two years of the bringing of the suit, will not prevent his absence from being excluded from the computation. 1. The language of our statute makes no exception in favor of such absence. It is imperative that the time, during which a defendant shall be without this state, shall be excluded from the computation. 2. Where the language used in statutes of limitations is much less clear in this particular than in ours, it has been held to apply to foreigners, and to citizens of other states, equally as to residents of the country or state which adopted it. 3. The word return, as applicable to an absent debtor or creditor, applies as well to persons coming from abroad, as to citizens of the country going abroad for a temporary purpose and then returning. Ang. on Lim., § 206. Strithorst v. Graeme, 3 Wil. R., 145. 4. If the statute provides that where a debtor, at the time the cause of action accrued, was out of the state, and did not leave attachable property therein, the statute will not begin to run until his return, the provision applies to persons who have never been in the state, as well as to citizens who have been absent for a time. Dwight v. Clark, 7 Mass., 515. Little v. Blunt, 16 Pick., 359.
    IV. There is no allegation in the defendant’s rejoinder, that the right of action is barred by the statute of limita-' tions in the state of New York, (or even that there is any such statute in that state,) but if the pleadings contained the allegation that the remedy was barred in that state, it would not affect, the remedy sought in Connecticut. Le Roy v. Crowninshield, 2 Mason, 151. McElmoyle v. Cohen, 13 Peters, 312. Townsend v. Jemison, 9 How.S. C., 407. Don v. Lipman, 5 Clark and Fin, 1. Ang. on Lim., § 66.
    V. Story, in his conflict of laws, suggests that if the “ lex loci contractus” not only bar the remedy, but extinguishes the claim itself and declares it a nullity after the lapse of the time prescribed, and the parties are resident within the jurisdiction during the whole of that period, so that it has fully operated upon the case, the question might properly arise whether such statute of limitations may not afterward be set up, in any other country to which the parties may remove. This suggestion is predicated upon the admission that if the statute only bars the remedy, then even if both parties to the suit have resided within its jurisdiction during the prescribed period, such residence, though in “ locu contractus,” will not affect the remedy pursued in another jurisdiction. Huber v. Steiner, 2 Bing. N. C., 202. Wynn v. Lee, 5 Geo., 217.
    VI. The identical question, here presented, has been repeat-, edly adjudicated, and with the exception of the state of New Jersey, it is believed that the decisions have been nearly, if not quite uniform,-in holding that the facts, setup by the defendant. in his rejoinder, are insufficient to enable him to shield himself under our statute of limitations.
    Some of the authorities, cited below, go beyond the exigencies of this case and hold that where the cause of action accrued in a foreign state, and both the plaintiff and defendant were residents in that state, and the period, prescribed by the laws of such state as sufficient to bar the remedy therein, had elapsed during such residence, yet the removal of the defendant, whether temporary or permanent, into another jurisdiction, prevents him from interposing such foreign residence in bar of the plaintiff’s claim. Williams v. Jones, 13 East., 439. Berger v. Roche, 11 Pick., 36. Way v. Sperry, 6 Cush., 238. Graves v. Wells, 19 Verm., 178. Ruggles v. Keeler, 3 John, 263. King v. Lane, 7 Miss., 241. Bedford v. Bradford, 8 Mo., 233. Town v. Bardwell, 1 Stew. & Port., 36. Mullen v. Ridgeway, Add. R., 278. Lavasseur v. Ligniez, 1 Strobh., 326. State Bk. v. Seawall, 18 Ala., 616. Worth v. Wilson, Wright, 152. Egbert v. Dibble, 3 McLean, 86.

      Dutton, and White, and Evarts, for the defendant.
    I. The question raised by the demurrer, in this ease, is one of the construction and application of the Connecticut statute of limitations. The substantive limitation of the statute operates upon the enumerated actions, without any reference to the locality, domicil, or citizenship, of the parties, to sue or to be sued. Its words, as respects the present action, are, “ no action of account shall be brought but within six years next after the right of action shall accrue.” Rev. Stat., tit. 31, § 3, p. 467.
    1. The present action would, manifestb#be suppressed by the terms of the statutory prohibitiom^Nlo suitor is admitted to prosecute such an action iimhe state, but within six years after his right of action a(Wued. 2. If the suitors in this action were citizens or residents of this state, and had been so during the running of the six years limited by the statute, the courts would have been closed against the action. 3. The enquiry, then, is, whether the fact that both the suitors were citizens and residents of the state of New York, when the right of action arose, and have been such citizens and residents, ever since the right of actionjjarose, opens the courts of Connecticut to this litigation between strangers, against which they would have been closed, if between its own citizens or residents.
    II. The maintenance of actions at all, in the courts of one state, or nation, by citizens of another, rests only upon comity; in relation to the several states of the union, however, and the citizens of each of them, the federal constitution has imposed an express obligation in this regard, declaring, “ that the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” Cons. U. S., Art. 4, § 2.

    1. But neither comity, nor this constitutional provision, extends the rights of non-resident suitors, or increases the obligations of the courts of this state in respect to them, beyond the rights and the obligations in the case of its own citizens.
    2. All the reasons, whether of public policy, or relating to the administration of private justice, which suggest the limitation of actions as between citizens or residents, apply with greater force when the parties and the cause of action both belong to a foreign jurisdiction.
    If public policy requires that the courts of this state should not be burdened with controversies between its own citizens, when the indolence or delay of suitors has suffered lapse of time to obscurejfcpervert, or obliterate evidence, a fortiori, the same public pMcy would suppress such litigation between foreign suitors.^»
    If the ends of private justice are not subserved by entertaining suits, wherein mer™apse of time embarrasses investigation and adjudication, a fortiori, the remoteness of the locality of the cause of action and of the transaction, and of the evidence involved in it, should exclude such suits from the forum. Ang. Lim. ch. 1, § § 9-11.
    III. The present action can be upheld only upon the notion that the exception or proviso of the statute, which excludes from computation, in the period of limitation, “ the time during which the party, against whom there may be any such cause of action, shall be without the state,” covers the case.
    1. The reason and design of this exception are, that the remedy should be saved when its prosecution is prevented by the withdrawal, or absence, of the party liable to the action from the jurisdiction, under which it had its origin, or within which the party, to whom he is liable, may rightfully expect his presence.

      2. The very phrase of the exception necessarily imports that, during the excepted absence, there is within this state a cause of action, which cannot be prosecuted by reason of such absence of the party liable, or a plaintiff who is delayed in his suit by the defendant’s not being within this jurisdiction with himself.
    3. The opposite construction of the exception thwarts the whole purpose and policy of the substantive limitation, overlooks the whole reason and design of the exception, is not called for, and is scarcely justified, by the mere words of the proviso.
    IV. The construction, claimed by the defendant, is supported by authority. In this state the point has never been adjudicated, but, that the words of the exception must be construed, not literally, but according to the reason of the provision, has, on another point, been adjudicated. Sage v. Hawley, 16 Conn. R., 106. In New Jersey, upon very full consideration, the point has been repeatedly adjudged. Beardsley v. Southmayd, 3 Green’s R., 171. Howe v. Lawrence, 1 Zabriskie, 714. The cases in the English books and in Massachusetts are inapplicable, as the statute under which respectively the decisions were made, makes the absence of the plaintiff, or creditor, from the jurisdiction, an exception to the running of the statute. Lafonde v. Ruddock, 24 Law & Eq. R., 239. Bulger v. Roche, 11 Pick., 36. Van Hemert v. Porter, 11 Met., 210. The facts, in Bulger v.
      Roche, showed the non residence of both plaintiff and defendant, but the argument and decision are put upon the absence of the plaintiff, pp. 36, 40. The New York' cases merely decide that statutes of limitation are part of the lex fori, and that a foreign statute of limitation is no bar. Nash v. Tupper, 1 Cai. R., 402. Ruggles v. Keeler, 3 Johns., 263. The cases in Maine were under a statute, which makes the absence of the plaintiff, or creditor, an exception to the running of the statute. In the New Hampshire cases the point' does not arise. In the Vermont cases the point is not made. McMillan v. Wood, 29 Maine, 217. Thibodeau, v. Levasseur, 36 Maine, 362. Sissons v. Bicknell, 6 N. H., 557. Dunning v. Chamberlin, 6 Verm., 127. Graves v. Weeks, 19 Verm., 178.
    V. The circumstances of this case strongly illustrate the convenience, and even necessity, of the construction claimed by the defendant. 1st. To save the courts of this state from the burden and expenses of litigations between foreign parties, in cases where they would not entertain them if between citizens or residents, and where the foreign suitors would be excluded from their own domestic forum; and 2d. To save the courts of this state from becoming the instruments of oppression and vexation to visitors, on business or pleasure, within its borders.
   Ellsworth, J.

The important question, presented on this record is this; is the time of a debtor’s absence from the state to be rejected, in the computation of the six years, the period of the statute of limitations, where the cause of action originated abroad, and neither party was an inhabitant, or resident of this state 1

Statutes of limitation, though originating in a truly wise and just administration of the law, are mostly in their exact provisions or exceptions, of a technical and arbitrary character, and are therefore to be construed and applied, according to the exact and specific language of the enactments, and not upon any supposed general and abstract principles of equity. Courts may not extend them to cases, because they seem to be of an analagous character. It has often been held not to be enough for the court to be persuaded that the legislature would, undoubtedly, have made further provisions, so as to embrace the particular case,if their attention had been called to it. Judge Buller said, in 1 T. R. 52, “ we are bound to take an act of Parliament as it is made; a casus omissus can in no case be supplied by a court of law.” Lord Tenterden said, in 6 Bar. and Cres., 475, “ there was always danger in giving effect to what is called the equity of a statute, and it is much safer and better to rely on and abide by the plain words, although the legislature might possibly have provided for other cases, had their attention been directed to them.” In Fisher v. Harnden, 1 Paine, 61, Livingston, J. says; “ the court disclaims all right, or inclination, to put on the statute of limitation any other construction than the words import. It is as much a duty to give effect to those laws, with which courts sometimes take great liberties, as to any others which, the legislature may pass.” In 2 Mason, Story, J. says, “ he would not consider what in theory ought to be the law, upon philosophical and judicial reasoning, but follow the humbler duty of administering the law as he finds it.”

In examining the statute in question, it appears to us that language cannot express ideas with more perspicuity and definiteness, than does the language used in this statute. It declares, “ that in computing the time limited in the several cases aforesaid, the time during which the party, against whom there may be any such cause of action, shall be without this state, shall be excluded from the computation.” The pleadings admit that the defendant has not been in the state, exceeding two years before the commencement of the suit, and of course he cannot have the benefit of the statute, unless he can show, that the exception is not applicable to one in his situation. How does he attempt this ?. merely by showing that the cause of action was of foreign origin, and the parties were not, and never had been, inhabitants or residents of the state. But this proves nothing to the point. There is no such qualification to the exception, either expressed or implied, and none such was contemplated, or designed, by the legislature. Any foreigner, who is not an alien enemy, may sue or be sued in our courts, just like other persons, although neither plaintiff or defendant has ever lived here at all, and much more is this true of a plaintiff, a resident in another state, by reason of the constitution of the United States, which secures equality of rights to citizens of any of the states, irrespective of place of domicil; nor is the fact, that the cause of action originated in New York of any importance, for the cause of action is transitory, following the debtor, wherever he goes. It is universally admitted, as elementary law, that the creditor may pursue his debtor, into and through every state, and every country, and sue him wherever his person, or his property, can be found. Ang. on Lim., 210. Graves v. Strong & al., 19 Verm., 178. Bulger v. Roche, 11 Pick., 38. Williams v. Jones, 13 East., 448. Ruggles v. Keeler, 3 Johns., 266. Whitney v. Goddard, 20 Pick., 310. Hale v. Lawrence, 1 Zab., (N. J.) 742.

It was contended in the argument, that if the plaintiff can bring a suit in this case, and the defendant cannot plead the statute of limitations, because he has not been in the state the full six years, a foreign citizen has an advantage over a creditor, who is a resident of the state. This is not a just view of the case, for a citizen of this state could have sued his debtor situated just as this debtor is, a resident of New York, so that nothing depends on the part of the domicil of the plaintiff or defendant, but every thing turns on just what is provided, in the statute, the absence of the defendant.

Nor is there any thing in the idea, dwelt upon with so much ingenuity, that state claims, from abroad, will be brought here, until the dockets of our courts become encumbered with foreign claims, to the serious detriment of the business of our own citizens. As long as foreigners may freely sue in our courts, whether the causes of action be more or less recent, this theoretical objection may be imagined, but until the practice becomes an actual evil, instead of an imaginary one, and until our international law be altered, we must continue to yield to the citizens, or residents of other states and countries, what we are exacting from their courts, in behalf of our own people. This liberty indeed, may be abused, but still it cannot be denied without endangering and embarrassing our commercial intercourse.

The statute of James is the earliest statute of limitations, of personal actions in England. In this statute, exception is made only in favor of the plaintiff’s absence, “ beyond sea,” &c., &e. In construing the words, “ beyond sea,” it was early decided in England, and our courts follow that construction, that they meant out of the jurisdiction of their courts; and no importance was attached to the time that the defendant was out of the country, nor to the national character, or domicil of the parties. The next statute of limitations was passed in the reign of Queen Anne, and then the disability arising from absence, was extended to the defendant, if he was “ beyond seaon his return into England, within the times limited by the statute, he might be sued, and the word “ return” was held to include alike the arrival in England of a foreigner and of a citizen, returning from an absence abroad. So that, after both statutes were passed, it became the settled law of that country, that the time, that the plaintiff, or defendant, was not in the country, should not be computed under the statute of limitations. We cite only a few of the numerous authorities. Williams v. Jones, 13 East., 448. Lafonde v. Ruddock, 24 E. L. & Eq., 239. Bulger v. Roche, 11 Pick., 38. Whitney v. Goddard, 20 Pick., 310. 1 Show., 91. King v. Walker, 1 W. Bl., 286. Sleght v. Kane, 1 Johns, cases, 76. Ruggles v. Keeler, 3 Johns., 267. 3 Cran., 174. Murray v. Baker, 3 Whea., 541. Bank of Alexandria v. Dyer, 14 Pet., 141 and Ang. on Lim. We particularly call attention to the case of Ruckmaboye v. Mottichund, 32 E. C. L. & Eq., 84, which was not cited on the trial; it contains the whole law on the subject.

Our statute has no exception, excluding from computation the absence of the plaintiff, and this exception would not seem to be necessary, since the plaintiffs absence does not prevent him from bringing his suit, at any time when the defendant comes within our jurisdiction, or has property within it, for he may bring suit here, let his domicil be where it may. It should be remembered that the statutes of James and Anne have no necessary connection with each other and scarce any relation-to each other, but are independent and distinct, and in Connecticut we have only the statute of Anne, at least so far as absence is involved.

We do not think there is any foundation for the main position in the defendant’s claim, viz.: that because our statute makes provision only for the absence of the defendant, therefore the plaintiff himself, being absent, cannot have the benefit of the defendant’s absence to save the statute. We see no such connection nor distinction, nor has any well considered authority been cited in support of it. It is true that statutes of limitation in some of the states do not run in the absence of either of the parties, but this is because those states have adopted both of the English statutes; in other states, where the statute of Anne only exists, the defendant’s absence is not computed.

The question, at issue, has been again and again decided in this country and abroad, and, at this day, the law of the case rests on judicial authority of the highest and most decisive character. In Williams v. Jones, both plaintiff and defendant had long been out of the country, and the cause of action was of foreign origin. The defendant, coming into England, was sued for money expended in Bengal. He pleaded the statute of Anne in bar of the action, to which the plaintiff replied, and the defendant alleged, in his rejoinder, the absence of the parties, and that the cause of action originated in India, where the plaintiff could have sued, but did not. The court of Kings Bench unanimously held that the defence could not prevail. In Bulger v. Roche, the plaintiff and defendant were inhabitants of Halifax; the action was on a note given by the defendant to the plaintiff in Halifax, and the defendant being sued in Massachusetts, pleaded the statute of limitation, to which the plaintiff replied the absence of the defendant, out of that state, and out of the United States; the court held, that the statute afforded no defence. They said that where a debt was contracted, in a foreign country, between subjects thereof, who remained there until the debt became barred by the law of limitations of such country, the Massachusetts statute of limitations could not be pleaded in bar to an action upon the debt, brought within six years after the parties came into the commonwealth. Graves and al. v. Strong, a case of the same character, came before the supreme court of Vermont, and was decided in the same way. They held that the tenth section of the statute of limitation of 1797, which provides that where the debtor, at the time the cause of action accrued, was without that state, the suit may be commenced within six years after his return into the state, extends to a case where both parties are resident citizens of another state, and the debtor is within this state for a temporary purpose at the time the writ is served. A like decision was had in Ruggles v. Keeler. The court say that the act requires that all actions, founded upon any contract without specialty, shall be brought within six years next after the cause of action accrued. These words would undoubtedly, unless controlled by the exception in the statute, apply even to the case of foreigners, and to causes of action arising abroad. The statute of the 21 James 1, was so understood by Lord Chancellor Cowper, in the case of Duplein v. DeRoven, 2 Vern., 540, which arose shortly before the statute of Anne, and he observed that it was plausible and reasonable that the statute of limitations should not take place, nor the six years be running until the parties came within the cognizance of the law of England, but that must be left to the legislature. But a proviso in the statute of Anne, and which we have adopted in our act of limitations, saves the operation of the statute, if the party shall be out of the state at the time the cause of the action arises against him, and the statute does not begin to run until after the return of the defendant. Whether the defendant be a resident of this state, and only absent for a time, or whether he resides altogether out of the state, is wholly immaterial; he is equally within the language of the proviso. See Dwight v. Clark, 7 Mass., 515. Littte v. Blunt, 16 Pick., 359. Strithorst v. Graeme, 3 Wil., 145. Way v. Sperry, 6 Cush., 238, and Ang. on Lim., 214.

To these authorities it is replied, that in England and Massachusetts, the statutes of limitation contain an exception of the plaintiff’s absence as well as the defendants, and this leads to a different construction of a statute which provides for the absence of the defendant only. We do not so understand it, nor can we perceive any reason for such a conclusion. The two statutes, as we have before said, are entirely distinct and independent, and the application of one does not help in the construction of the other. Besides, the statutes of New York and Vermont are like our own statute, and yet, the decisions there are the same as in England and Massachusetts. The distinction, alluded to, is no where to be found in any book within my reading, and we think no importance whatever can be attached to it.

The only case, which has been referred to, to sustain the defendant’s view of the ease, is Beardsley v. Southmayd, 3 Green, 172, and perhaps a later case of the same court, which professedly rests entirely on the first case. In the former it was held by á divided court, that in the case of nonresident parties, the debtor, being found and sued in New Jersey, might plead the statute of that state, although there be in it a clause not allowing the absence of the defendant to be computed. The New Jersey statute is similar to our own. This decision was earnestly opposed by some of the ablest members of the court at the time it was made, and the contrary doctrine was maintained by what seems to us to be the better arguments of the judges. It however stands alone, contrary to the entire current of decisions elsewhere, and it proceeds upon the incorrect idea, that a plaintiff, who lives in New Jersey, has a better standing in court than one who does not, and that the latter may not recover, while under the same circumstances, the former may,—an idea which, we believe, is untenable, and, as to the plaintiff in that case, against the constitution of the United States. The reason assigned, by the majority of the court, for the distinction is as remarkable as the opinion itself. State, and liquidated claims, says the judge, which the plaintiff would not dare to sue at home, may be revived, and successfully prosecuted against persons casually traveling on business, or for pleasure, or who may change their residence after a lapse of years.” The substance of which is, that it will be inconvenient for debtors to be arrested, or required to fulfil their obligations while abroad, or whenever their property lies in a foreign state, and especially, if they are traveling on business, or pleasure. If this be so, and mere inconvenience is a sound argument, it must be equally true in relation to any [debtor, whether the debt be of long or short standing; but we presume this'will not be claimed. The inconvenience and additional expense to the creditor, in pursuing his debtor into a foreign jurisdiction, over sueing him at home, shows that there is some substantial reason for so doing; perhaps a necessity which would satisfy the court here, if the court had a right to look into it, which it certainly has not. The courts of all civilized countries are open to give redress in all transitory actions, according to the merits and justice of the case, and they have nothing to do with the domicil of the parties, provided the court once acquires adequate jurisdiction of the person, or property. It was well said by the plaintiffs counsel, that justice is justice every where, and always. The defendant therefore being in Connecticut, and arrested as the debtor of the defendant, within the jurisdiction of the court, he must answer, like other persons claimed to be debtors, to the claim made against him and cannot avail himself of the exception in the statute of limitations, because he can not bring himself within its language.

A question has been made as to the form and character of the fifth plea, but we have not turned our attention to that question at all, as we dispose of the case upon another and more important point.

We advise judgment for the plaintiff.

In this opinion, the other Judges, Storks & Hinman, concurred.

Judgment for the plaintiff.


text:
    Kelsey vs. Burgis.
    The act of 1849, relating to the talcing of usury, is prospective in its terms and operations.
    The penalty, imposed by such act, for contracting to take an illegal rate of interest for the forbearance of a loan previously made at lawful interest, is the forfeiture of the interest accruing after such illegal contract was made, and not the interest, which had accrued previous to the making of the contract.
    Therefore, where in an appeal from the doings of commissioners on an insolvent estate, it appeared that in 1845 the appellant loaned money to A. taking a note therefor, payable on demand with interest, and the accruing interest thereon was duly paid till 1853, when the appellant required, for the further forbearance of said loan, interest at the rate of ten per cent. per annum, to ■which A, agreed, and afterward paid one half year’s interest at that rate ; it was held, that no interest, which accrued subsequent to such agreement, could be recovered, and that all payments made thereafter, whether of interest or of principal, were to be applied upon the principal debt.
    This was an appeal from the doings of the commissioners, on the estate of Samuel Burgis, deceased, in relation to the claim of Wm. Kelsey against that estate.
    The superior court for the county of New Haven, at the term holden in December, 1855, found the following facts, and reserved the case for the advice of this court.
    On the 6th day of March, 1845, Samuel Burgis, then in full life, borrowed of Wm. Kelsey, the appellant, three thousand dollars ; and in consideration thereof, jointly and severally with John Burgis as sufety, executed to the said William Kelsey his note for three thousand dollars payable on demand with interest. The interest at the rate of six per cent, was duly paid by said Samuel Burgis on said note to Kelsey, up to the 6th day of September, 1853. On the 30th day of November, 1853, said Kelsey required the immediate payment of said note, unless the said Samuel Burgis would pay him interest at the rate of ten per cent, per annum, for the further forbearance of said note; and it was agreed thereupon between the said Kelsey and Samuel Burgis, that interest at the rate of ten per cent, per annum from and after the 6th day of September, 1853, should be paid on said note. On the 6th day of March, 1854, in pursuance of said agreement, the said Samuel Burgis paid and said Kelsey received of him the sum of 150 dollars as interest on said note for the six months last preceding, being at the rate of ten per cent, per annum. On the — day of April, 1854, said Samuel Burgis died, and no further payments were made upon said note.
    In addition to the aforesaid payments of interest, in September, 1852, said Samuel Burgis, at the request of said Kelsey, paid to him the taxes of said Kelsey on said note, in the town of Winsted, amounting to the sum of eleven dollars sixteen cents, but the same was not demanded, or received, by said Kelsey as a condition for the forbearance of said loan. The endorsements of interest on said note at the rate of six per cent., up to September 6th, 1853,
    amounted to.......f1,530.00
    Amount of taxes paid in 1852, .... 11.16
    Amount paid March 6th, 1854, for interest for the six months preceding, at the rate of ten per cent., 150.00
    1,691.16
    Said Kelsey duly presented said note to the commissioners on the estate of Samuel Burgis, for allowance, who deducted from the principal of said note the aforesaid items, and allowed the balance, amounting to the sum of 1,308 dollars 84 cents, as the claim against said estate, in favor of said Kelsey, by virtue of said note.

      Baldwin and Dutton & Munson in support of the appeal.
    1. The object of the statute of 1849 was to reduce the penalty for taking usury, to a forfeiture merely of what is taken usuriously.
    2. The third section of the same statute applies the same principle, and accomplishes the same object, by considering everything received usuriously by the lender, as received towards the principal.
    3. The statute is expressly prospective, and is not intended to affect transactions, which had taken place previous to the act.
    4. The expression in the third section, “ that judgment shall be for such a sum as that the plaintiff shall have, in the whole, the amount originally lent, only without interest,” is inserted merely to carry out previous provisions, and ought not to be so construed as to affect bona fide payments of interest on a debt.
    5. The last clause of the section evidently refers to a future contract for usury on a contract previously made. It would be gross injustice, as well as an absurdity, to make a usurious contract in 1856 affect a bona fide transaction in 1850:

      K J. 8f T. S. Buel and Smith against the appeal.
    1. By the provisions of the act of 1849, the agreement to pay and receive ten per cent, was usurious.

      2. The act of 1849 applies not only to contracts subsequently made, but to contracts made prior to the passage of the act.
    3. The appellant is entitled to recover only the principal sum, after deducting all sums paid for forbearance.
    4. If the note is not affected by the act of 1849, then, by the provisions of the old law unrepealed, the contract is utterly void.
   Hinman, J.

By the act of 1849, in respect to the taking of usurious interest, Rev. Stat. p. 867, it is provided, that the taking of more than the sum of six dollars, for the forbearance of one hundred dollars in money, or other property of that value, for a year, and after that rate, for a greater or less sum, or for a longer or shorter time, shall work a forfeiture of the money, or other property so taken. The act is prospective in its terms, and should, therefore, have a prospective operation. In 1845, long before the enactment of this statute, the appellant loaned to the deceased the sum of three thousand dollars, taking his and John Burgis’ note therefor, payable on demand, with interest; and the regular accruing interest, at the rate of six per cent., was paid thereon, up to the 6th day of September, 1853. Thus far there was nothing illegal, or improper, in the contract, or the payments that were made under it. Mr. Kelsey had a valid note, the full amount of which was justly due, and might have been collected. But on the 30th of November, 1853, he required of the deceased, for the further forbearance of said loan, interest, at the rate of ten per cent, per awmm, which was agreed to by the deceased, and one half year’s interest, at this rate, was subsequently paid on the note.

It is admitted that this illegal agreement cannot be enforced. But the appellant claims that it ought not to affect his right to recover simple interest, at the lawful rate, for the whole time the loan has been forborne; and the appellees, on the other hand, claim that it operates to destroy all claim for any interest on the debt, as well for that which accrued and was paid prior to the making of the illegal contract, as for that which otherwise would have accrued, subsequently thereto,—that the illegal agreement, under the act of 1849, retro-acts upon the debt, from its commencement, to prevent any interest from being allowed upon it; and all the interest paid upon it, though legally and justly due, as interest, at the time it was paid, ought now to be deducted from the face of the note.

We think neither of these claims correct. That of the appellant is contrary to the whole spirit of the act, and to the language of the last clause of the third section, which provides, that the provisions of that section shall apply not only to cases where usurious interest is reserved, or taken, at the inception of the contract, but also to cases, where interest, beyond the rate allowed by law, is reserved, or taken for further forbearance of loans previously made. While we do not adopt the harsh construction of this clause, which is claimed on the other side, it was, obviously, put into the section to guard against an evasion of the main object of the law, which it was supposed might be effected by making oppressive contracts, in respect to the further forbearance of previous loans, at lawful rates of interest. We think, therefore, that, as this case is situated, the original loan having been made previous to the enactment of the law, and considering, that, by the terms of the law, it was obviously intended to operate prospectively, it can only apply to the interest which otherwise would accrue upon the loan, after the making of the usurious agreement. On the other hand, at the time the previous interest accrued, and was paid, it was justly, and legally due, and we do not think it was the intention of the legislature to make it illegal, in consequence of an illegal agreement, in respect to further forbearance of the original loan. In substance, this would be to authorize the debtor to recover, as a penalty for the illegal agreement, money previously paid under a lawful contract, and which, at the time it was paid, was justly due. To justify such a construction, the intention of the legislature should be expressed in language such as to leave no doubt of the object. But the language of the first section is clearly prospective in its terms. It speaks of those who shall take, accept, or receive, which are words only proper as applied to transactions thereafter to occur; and the third section is still more explicit. It commences by saying that “ contracts hereafter made, by which there shall be reserved, or taken, more than at the rate,” &c., words which are totally inapplicable to contracts then made, which, we think, were intended to be left unaffected by that statute.

The same reasoning may be applied to the claim of the appellees, that the last clause of the third section of the act of 1849 applies to this particular note. It can apply only to contracts made after the passage of the act,—whereas this contract was made long before its passage. The illegal contract was made after the passage of the act, and is, therefore, within its terms, but, in respect to the note, it is unaffected by it, except so far as it is affected by the subsequent illegal agreement, and this can only be, in respect to interest, not then paid, but thereafter to accrue.

It was not the intention to impose a greater penalty for contracting to take an illegal rate of interest, than the forfeiture of the whole interest after the illegal contract was made. Any other rule would be unequal, and, therefore, is not to be presumed to have been intended. The rule, claimed by the appellees, would operate unequally, just in proportion to the time a contract, originally legal, but made usurious by a subsequent agreement like the one under consideration, had been running, before such subsequent agreement was entered into. If it was at the expiration of only one year, then only six per cent, would be forfeited, or one year’s interest. While, if the debt had been for a longer time due, and the interest had been paid, the creditor might find his debt fully paid by the mere payment, from time to time, of the accruing interest, which, when paid, was justly due. This could not have been the meaning of this clause of the third section, especially when applied to cases, like this, where the illegal agreement is made for the further forbearance of a loan, previously made at a lawful rate of interest. We think, therefore, that the illegal agreement, in this case, operates to defeat the recovery of any interest on the loan, accruing after that agreement was made, and all payments, made subsequent to that time, whether óf interest or of principal, are to • be applied upon the principal debt. The effect of the illegal agreement is the same, in this case, as if the original debt, with the interest due upon it, had been collected, and the amount then loaned to the deceased, at an illegal rate of interest.

For these reasons there was error in the report of the commissioners, which should be corrected in conformity to the views here expressed.

In this opinion, the other Judges, Storrs and Ellsworth, concurred.

Report of commissioners to be corrected accordingly.