ORANGE, March, 1842.

State

D.

Brady.

an intent to commit felony generally, but some particular species of it must be named-as, to commit murder, robbery, or theft. And as the owner of the house must be named in charging the offence, so also, in the last example put, must the owner of the goods intended to be stolen. It is not essential to the consummation of the offence, that the intent to steal should be executed; though it is said that if the indictment charges the theft to have been committed, the allegation must be proved. Here the intent to steal the goods of Erastus Allen is alleged, and, after verdict, should be taken to have been proved. But the actual stealing of his goods is not alleged, and therefore was not required to be proved.

The objection, then, does not arise for want of a legal and sufficient charge of burglary, but upon the ground that the allegation of theft here made is not a part of that charge. It assumes that the indictment shows an improper joinder of offences. But the charge of theft in these cases is never strictly included in the charge of burglary. The latter is fully expressed in charging the burglarious entry alone. Yet an additional allegation, in the same count, that the purposed theft was committed, has never been supposed to vitiate the indictment. Such, indeed, are all the precedents, when a theft immediately following the entry is expected to be proved. Upon such an indictment the prisoner may be acquitted of burglary, and convicted of the theft, whilst a general verdict of guilty will cover both offences. Ph. Ev. 136 & 156. 1 Chit. Cr. L. 205-6. As the crime of burglary and the crime of larceny, thus committed, have a close connection in fact, so, it appears, they may properly be charged in a like connection. It is true, that the hope of stealing Erastus Allen's goods prompted the commission of this burglary, and perhaps the present indictment furnishes the first instance of alleging a theft committed, which was not specially designed at the time of the entry. But as we discover no principle which, for the present purpose, should distinguish the one theft from the other, we think it indifferent, whether the alleged theft was of Erastus Allen's goods, or those of another person. The result is that the prisoner can take nothing by his motion, and judgment must be entered upon the verdict.

SILAS SLACK, qui tam, v. STEPHEN GIBBS and AMOS GIBBS.

ORANGE, March, 1842.

Slack,qui tam,

v.

An action to recover the penalty for being a party to a fraudulent convey- Gibbs et al. ance cannot be maintained in the courts of this state if the conveyance was made in another state.

Under the statutes in force previously to the passage of the revised statutes, if a fraudulent conveyance is made in one county and the party aggriev ed and the parties to such conveyance all reside in another county, the action may be brought in the county where the parties reside, for the benefit of the plaintiff and the treasurer of that county.

A joint action against the fraudulent grantor and grantee, to recover the penalty, cannot be maintained, and if both are joined as defendants and a verdict is obtained against them, judgment will be arrested.

THIS was a qui tam action, brought by the plaintiff to recover of the defendants, as well for himself as for the treasurer of the county of Orange, the penalty of the statute against fraudulent and deceitful conveyances.

The plaintiff, in his declaration, after reciting the seventh section of the act entitled "an act for the punishment of certain inferior crimes," passed November 15, 1821, (Comp. Stat. Slade's Ed. p. 266,) set forth and alleged that the defendant, Amos Gibbs, was indebted to him in the sum of thirty two dollars, specified in the said Amos' promissory note to the plaintiff, dated March 30, 1840; that the said Amos was then and there seized and possessed of certain lands and tenements in Tunbridge, in the county of Orange, (describing them,) of the value of five hundred dollars; that the said Amos then owned certain personal estate, (describing it;) that the said Amos, afterwards, to wit, on the first day of April, 1840, at Hartford, in Windsor county, to wit, at Tunbridge aforesaid, fraudulently and deceitfully and with intent to defraud the plaintiff of his said demand against the said Amos and to altogether defeat and avoid the same, by his certain deed of warranty, executed in due 'form of law, dated the day and year last aforesaid, for the ' pretended and feigned consideration of eight hundred dollars, conveyed the said real estate to said Stephen Gibbs, and, on the thirty-first day of March, 1840, with like frau'dulent intent, sold, conveyed and delivered the personal 'estate above described to the said Stephen. And the plain

tiff further says that the said Stephen then and there ac

Slack,qui tam,

0.

Gibbs.

'cepted and received said conveyance from the said Amos, ' and was then and there privy to the same and had full notice of said fraudulent and deceitful intent and purpose of 'the said Amos therein, and that the said Stephen, so being 'privy to said fraudulent and deceitful conveyance of said real ' estate and said goods and chattels above described, and with 'notice of such fraudulent intent of the said Amos, as aforesaid, ' afterwards, to wit, on the day and year last aforesaid, at Tun'bridge aforesaid, and at sundry other times thereafter, did 'justify said conveyance to be made, had and executed, bona 'fide, and upon good consideration. By means of all which 'the plaintiff hath been greatly aggrieved, hindered and delayed, and wholly defrauded of his said debt against the said Amos, to wit, at Tunbridge aforesaid, all which is against the 'form, force and effect of the statute in such case provided.' The defendants pleaded not guilty and issue was joined to the country.

On the trial in the county court, the plaintiff introduced testimony tending to prove that, on the last day of March, 1840, the defendants started from Tunbridge, Vt., where both plaintiff and defendants resided, for Boston, with seventeen horses; that eight of said horses were owned by the defendant, Amos Gibbs, and the remainder belonged to Stephen Gibbs, the other defendant; that, immediately previously to their leaving Tunbridge, most of the property described in the plaintiff's declaration, except the horses, was conveyed by said Amos to said Stephen, and that they went together, on said last day of March, 1840, to Lebanon, in the state of New Hampshire, where the said Amos executed a bill of sale of the horses owned by him to said Stephen, and that all the property was sold and conveyed by the said Amos to the said Stephen for the purpose of defrauding the plaintiff and other creditors of said Amos.

The plaintiff contended, and requested the court to charge the jury, that, if there was sufficient evidence in every other particular to entitle the plaintiff to recover the value of said horses the fact of making the sale of said horses in New Hampshire would not deprive the plaintiff of his right to recover for said horses in this action. But the court decided otherwise, and, among other things, charged the jury that the plaintiff was not entitled to recover for the

fraudulent sale of said horses, and that all the testimony, relating to them should be laid out of the case.

The jury returned a verdict for the plaintiff, to recover the value of the property fraudulently sold, excepting the horses, and the plaintiff excepted to the charge of the court.

The defendants then moved in arrest of judgment for the insufficiency of the declaration. The county court overruled the motion and rendered judgment for the plaintiff, and to this decision the defendants excepted.

Wm. Hebard, for defendants.

The only question presented by the plaintiff's bill of exceptions, is in relation to the correctness of the charge of the court relative to the horses sold in New Hampshire. And in that was there any error?

I. This question depends mainly upon the construction of the statute, upon which the action is founded.

1. This is a penal statute, and penal statutes, are to be construed strictly, and nothing is to be taken by intendment or inference. Brooks v. Clayes & Morse, 10 Vt. R. 37. 1 Black. Com. 88, and the notes. Commonwealth v. Barlow, 4 Mass. R. 439. Melody v. Reab, 4 Mass. 471.

2. The statute, upon which this action is founded, defines the offence for which this penalty is provided, "an inferior crime or misdemeanor." And crimes are punishable in the county where they are committed. This same statute, among other things, prohibits horse racing, and the vending of lottery tickets.

Suppose these defendants had been guilty of a breach of that statute in either of the particulars last named by going into New Hampshire, and there committing the offences named, could they be prosecuted here? That would not be pretended, and still that might as well be done as to recover the penalty in this case for an offence committed in New Hampshire.

3. But it is believed that all doubt or difficulty on this part of the case, will be relieved by a recurrence to the reading of the statute, without resorting to general principles for

a test.

By the compiled statute it is enacted that "all the parties to such fraudulent and deceitful conveyance," &c., "shall for

ORANGE,

March, 1842.

Slack,qui tam,

v.

Gibbs.

March, 1842.

Slack,qui tam,

v

Gibbs.

ORANGE, feit the value of such houses, lands," &c., "and the value of such goods and chattels," &c., which forfeiture shall be equally divided between the party aggrieved and the county treasurer, for the use of the county. What county is meant by the county?' It does not mean any county. The article, the,' restricts it to some particular county. Of course there is but one county that is entiled to the penalty. Does it mean the county in which the parties to the suit reside? That cannot be the meaning, for they may reside in different counties. Does it mean the county in which the party aggrieved resides? That cannot be the meaning, for the aggrieved party may be a partnership, or other company, composed of individuals residing in different counties. Freeman & Forbes v. Davison, 11 Vt. R. 660. Does it mean the county in which the parties to the fraudulent conveyance reside? That will not do, for they, too, may reside in different counties. If the above reasoning is correct, there is but one further alternative, and that is, that 'the county,' as it is expressed in the statute, means the county in which the offence is committed. And that is a conclusion that is altogether inevitable, and fully sustained and corroborated by the reading of the whole section. A further conclusion, then, is the inevitable result of the whole. If the true understanding of the statute is that the penalty is to be divided between the party aggrieved and the county in which the offence is committed, the county of Orange cannot be entitled to the penalty for an offence committed in the state of New Hampshire. And this view of it comports with the reading as it is in the revised statutes, which is as follows; "Which forfeitures shall be equally divided between the party aggrieved and the county in which such offence is committed." The revised statutes do not alter the law on this subject. The alteration in the phraseology is merely an expression of the legislature, in relation to the true meaning of the old

statute.

II. A further consideration of this case, arises upon the motion in arrest, on account of the insufficiency of the declaration.

1. The declaration does not contain an allegation that the sale of goods and chattels, was a fraudulent sale. It merely states that the said Amos, " with like fraudulent intent" sold