Enos v. Tuttle

¶1There exists no doubt, that a debt due, or negotiable note, before it has been negotiated, may be attached on a demand against the payee, liable to be defeated by the transfer of the note, at any time before it falls due. And even after the transfer, if it was merely voluntary, of fraudulently made, to protect the debt from creditors, it is attachable in the same manner. In Starr v. Tracy & al., 2 Root, 528. it was determined, that the goods of an absconding debtor, covered by a fraudulent conveyance, were liable to a foreign attachment for his debt.

¶2Was the money due from the defendant on a promissory note, the right of Green Bixby ? This is the principal question. The act concerning absconding debtors, was made, as the preamble declares, “ for the better preventing fraud and deceit, sometimes designed and practised, by ill-minded debtors, who hetrust their goods &c. in the hands of others, with intent to reserve and secure the same to their own use, and thereby *30defeat their creditors of their just dues.” (a)For the pro— motion of this object, it should receive the most liberal con struction. In Bottomly v. Brooke, and Rudge v. Birch, cited 1 Term Rep. 621, 2. a debt was set off against the cestui que trust of a bond, sued in the name of the trustee. Any equitable demand has been adjudged to be a credit. “ A legacy due from an executor, who admits assets, is, in equity, a debt due from such executor; and an equitable demand is a debt within the statutes of bankrupts.” Jeffs v. Wood & al. 2 P. Wms, 128, 131. Upon the same principle it is, that a bond, assigned for a valuable consideration, and bona fide, cannot be attached on a demand against the obligee, because in equity it is the property of the person to whom it is assigned. Fobs v. Brewster, 1 Root, 234.

¶3I think it unquestionably clear, that the debt from the defendant, within the meaning of that term, as it is used in the statute concerning absconding debtors, was due to Green Bix-by. It is not pretended, that he was the legal creditor, but in equity, the money due is his, precisely as if he were the as-signee of the note. The transaction being stripped of the covering interposed by fraud, it is no strained interpretation to consider the defendant as his debtor. The reason and spirit of the statute imperiously require it. If the forms thrown around the demand are available, the object of the law is defeated. A judgment, I admit, rendered against the defendant, will be no bar to the claim of Guernsey. It is only a shield to parties and privies ; and beyond this, if assailed, Tuttle must recur to the merits of his case for a defence. This is no peculiar hardship ; and perhaps the danger and inconvenience may be obviated, by a hill of interpleader brought against Enos and Guernsey. Be this as it may, the charge to the jury was incorrect; and I would advise a new trial.

¶4New trial to be granted.