March,

the personal property, &c. This is not a sufficient allegation ORANGE, of a fraudulent sale. The action being to recover a penalty, the allegation of the offence committed should be clear and explicit. Ellis v. Hull, 2 Aikens, 41.

2. There is no sufficient allegation that Stephen Gibbs ever accepted or received the personal estate and goods and chattels, and without such averment and allegation the declaration is bad. The plaintiff says that the said Stephen 'Gibbs, then and there accepted and received said convey'ance, from the said Amos, and was then and there privy to 'the same.'

That allegation clearly must refer to the conveyance of the real estate. A deed of land is called a conveyance and the plaintiff in his declaration uses the term in the same signification. No other conveyance, except the conveyance of the real estate, having been before named, the expression here used, 'said conveyance,' by legal and grammatical intendment, refers to the conveyance of the real estate, and being so, the declaration in that respect is insufficient.

3. There is no allegation, in the declaration, that Stephen Gibbs was privy to any fraudulent intent of Amos Gibbs, only what refers to the conveyance of real estate, as before stated; nor that he ever justified any sale of personal estate to have been made. It it alleged that he justified said conveyance to be made and executed,' but this, as we have before seen, referred to the conveyance of the real estate, no other conveyance having been made and executed, and that conveyance was the deed of warranty.

4. A further reason why judgment should be arrested is that the plaintiff claimed a penalty for the sale of real estate, which was effected in the county of Windsor, which can only be recovered for the benefit of Windsor county, and as the court gave the jury no instruction, in relation to that part of the case, and the jury having returned a general verdict, judgment for that reason must be arrested.

The fact that the defendants did not ask for any instructtion to the jury on that point will make no difference. State v. Crandall, 5 Conn. R.

5. The declaration is bad, being against the buyer and seller of the property, and, for that reason, judgment should be arrested. This is a penal action, for a criminal offence, VOL. XIV. W. R. IV.

46

1842. Slack,qui tam,

v.

Gibbs.

ORANGE, March, 1842.

Slack,qui tam,

v.

Gibbs.

and, by the common law, all offences are several, and offences by statute are also several unless made otherwise by the particular provisions of the statutes creating the offences. 1 Swift's Dig. 587.

The expression of the statute, in this case, is, 'every of the parties to such fraudulent and deceitful conveyance,' &c. 'shall forfeit.' This expression evidently makes the offence several, as clearly as if the expression had been, each of the parties.

Mr. Swift lays it down that the words, every person who does the act,' and whoever does the act,' are expressions which designate a several offence. And, in a penal action, all the defendants must be convicted or all acquitted.

Again, the statute says that 'every of the parties to such 'fraudulent and deceitful conveyance, who being privy 'thereto, shall justify the same to be made or executed." But a conveyance may be made with such intent and the grantee, at the time, not be informed of it. In such case he does not incur the penalty. Forbes & Freeman v. Davison, 11 Vt. R. 660.

As this then is an action for a penalty, created by statute, in which one of the defendants may be guilty and the other innocent, the declaration, for that reason, is evidently bad, and judgment must be arrested.

There are cases in which an action may be maintained against one or the other, at the plaintiff's election, but not against both. A sheriff and his deputy cannot be sued jointly for a tort committed by the deputy alone. But either one of them may be sued. Campbell v. Phelps, 1 Pickering's R. 62.

S. C. Eaton and L. B. Vilas, for plaintiff.

The first question in this case arises on the plaintiff's exceptions in relation to the ruling of the court with regard to the property sold in New Hampshire.

It seems that both the plaintiff and defendants resided in Tunbridge in this county, but that the sale of the horses was made in New Hampshire, and if the decision of the county court is sustained, we believe the statute, on this subject, becomes a mere nullity. All that any person would have to

do, to evade the law, would be to go over the line of the state and defraud his creditors living here with impunity.

ORANGE,

March, 1842.

Slack,qui tam,

The statute says that the forfeiture shall be equally divi'ded between the party aggrieved and the county treasurer,. for the use of the courty, to be recovered by an action on 'the case,' &c. Stat. Slade's ed. p. 266, §7. And we believe that the court will not give a forced construction to this statute for the purpose of enabling the defendants to avoid the penalty.

But, if it should be contended that this statute should be so construed as to give one half the penalty to the county in which the offence is committed, then we ask what constitutes the offience? We say that it is the defrauding the creditor of his debt, and where was that done? Most certainly where the party lived to whom the debt was owing. What evil did the legislature intend to remedy? Very clearly, the defrauding of creditors. Therefore we believe it the duty of the court so to construe the law as to carry into effect the design and object of the legislature. Can it be maintained that a fraudulent conveyance is not void by our law, as to creditors here, if made in another state, when made for the very purpose of avoiding debts here?

Suppose that Amos Gibbs had owned property in three counties in the state, and had, in these several counties, conveyed his property to Stephen Gibbs for the purpose of defrauding the plaintiff alone, who resides in this county, would it have been necessary to commence three suits in order to recover the penalty for a fraudulent conveyance? We believe not. The policy of the law is to prevent a multiplicity of suits.

2. The motion in arrest probably presents a new question, so far as it relates to the practice under this statute. Generally, suits have been instituted in such cases against the parties severally. But we believe a fair construction of the statute will allow of either course. It is certain that joining both parties in the same action operates for the benefit of the defendants, as, by suing them jointly, but one penalty can be recovered of both. How, then, can the defendants complain?

The statute would seem to bear that construction. It says every of the parties,' &c., and, in order to incur the penalty, it is necessary that the fraudulent intent should exist

March, 1842.

ORANGE, in the minds of both the grantor and grantee. Brooks v. Clayes & Morse, 10 Vt. R. 37. A qui tam action is a civil Slack,qui tam suit. Waters, qui tam v. Day, 10 Vt. R. 487.

D.

Gibbs.

3. It is not necessary to aver a delivery of the property fraudulently sold; the sale alone constitutes the offence, under the statute. Fuller v. Fuller, 4 Vt. R. 123.

The opinion of the court was delivered by

WILLIAMS, Ch. J.-In this case we are to determine both the sufficiency of the declaration of the plaintiff, and the correctness of the ruling of the county court on the trial. On the latter, it is only to be said that the proceedings of the county court were unquestionably right. A conveyance of property, however fraudulently intended or conceived, made in another state, cannot be a breach of our penal laws, or subject the party to a penalty therefor. Our laws are of no efficacy out of the territorial limits of the state, and however immoral a transaction may be, committed in another jurisdiction, it cannot be punished here, as a violation of the laws of this state. The sale of the horses in New Hampshire was properly excluded from the consideration of the jury. More important questions arise on the motion in arrest. Those which relate to the form of the declaration may be passed over with this remark, that it appears to have been accurately drawn, and is not liable to any of the technical objections which are raised against it.

That the conveyance was made in the county of Windsor, presents no obstacle against a recovery by this plaintiff, and by a suit brought in this county. The penalty given to the party aggrieved, by the statute in force when this suit was brought, was to be equally divided between him and the county treasurer, without designating what treasurer, and, so far as it was intended as a punishment, it is wholly immaterial into what treasury that part of the sum forfeited shall be paid, and it may as well be paid to the treasurer of the county where the suit is brought as to any other. The party aggrieved, who alone can institute the action, may commence it, either in the county where he resides, or where the defendants reside, and when a recovery is had and satisfaction obtained, he must pay that part which belongs to the public to the treasurer entitled to receive it. This was once decided

in the case of Chipman, qui tam v. Eaton. The revised statutes have now pointed out to what county treasurer the half of the penalty is now to be paid.

A more formidable objection, however, is presented in the joinder of the grantor and grantee as defendants in one suit. It is well settled that when several are sued jointly for an offence, which is in its nature several, and when each separately are liable to the penalty sued for, there can be no recovery and judgment will be arrested if there is a verdict against them. Whether the penalty incurred is a single penalty, or whether each of the parties to a fraudulent deed may be separately guilty, and each liable to a forfeiture, is the question now to be determined. The words of the statute are that every of the parties,' &c. These are the appropriate words to designate a several offence and a several penalty. There are two parties to a deed or conveyance; the grantor or grantors and the grantee or grantees, and although, with respect to the grantors, they may be joint or several, whether there is one or more who make the conveyance, and so with respect to the grantees; yet, we apprehend that the grantor and grantee are several and separate parties to the deed or conveyance, and when every of the parties are declared to be guilty of an offence, and to incur a forfeiture, the natural conclusion would be that each was liable, i. e. the grantor and the grantee.

If only one penalty is incurred by a fraudulent conveyance, by the grantor and grantee jointly, neither party could be a witness in a suit brought against the other to recover the penalty, as he would be directly interested to fasten a recovery on the other party, which, if satisfied, would exonerate him from any further liability. This court have decided that, in such an action, the fraudulent grantor may be a witness, and this could only be on the ground that the forfeitures were separate and independent.

Again, the public interest and the interest of creditors require that the whole of the penalties should be inflicted for the suppression of fraud. It should not be permitted to one creditor to recover the whole penalty, in a joint action against the two, if each are equally guilty, and each liable to a penalty. If we are permitted to reason ab inconvenienti, it is apparent that it would be hazardous to two parties to be thus

ORANGE,
March,

1842.

Slack,qui tam,

v.

Gibbs.