Ferdinand A. Haber and Gustave Oberbeck, Partners, as F. A. Haber & Co., Appellants, vs. William W. Nassitts, Appellee, 12 Fla. 589

WESTCOTT, J., delivered the opinion of the court. This was an action of assumpsit. An attachment was issued therein based upon an affidavit assigning as cause that the defendant “ was actually removing his property out of the State •of Florida.” The defendant, seeking a dissolution of the attachment, tenders an oath to the court putting in issue the “ special cause assigned,” and thereupon moves a dissolution. Evidence is heard upon the issue thus presented.

The plaintiff requests the-court to charge the jury thus: First. “ If the jury believe the defendant was removing his property beyond the limits of the State they must find for the plaintiff.” Second. “ If the jury believe that the defendant was removing any portion of his property beyond the limits of the State they must find for the plaintiff.” Which was refused, and the jury instructed as follows: “ If in this case you believe, from the testimony, that the defendant at the time of suing out the attachment was removing his property out of the State of Florida, you should find for the •plaintiff, unless you are further satisfied that it was not done with the intent of avoiding the payment of his debts.

It will be sufficient on this issue for the plaintiffs to prove that the defendant was removing his property out of the State, and it will be incumbent on the defendant to show the fairness of the transaction, unless it should appear from the testimony adduced against him. It will be competent for you to consider all the facts proved before you in determining as to oho intent of the defendant in the transaction, and if you believe that it was to avoid the payment of his debts you should find for the plaintiffs.

It is not necessary that the defendant should have been removing all Ms goods, but if the testimony satisfies you that he was removing any of them out of the State with such intent, you should find for the plaintiffs, for the plaintiffs would not be required in such a state of circumstances to wait until all the goods were removed or being removed.” The rest of the charge relates to the weight to be given to “ circumstantial testimony,” and it is unnecessary to repeat it, as no exception is urged to that portion of the charge.

To the refusal of the court to give the instructions prayed, as well as to the instructions given, the plaintiffs by their counsel excepted. Upon a verdict for the defendant there is a motion by plaintiffs for a new trial upon the following grounds: First The verdict of the jury was against the legal evidence in the case. Second. The court erred in admitting evidence not pertinent to the issue, and calculated to mislead the jury. Third.

The court erred in admitting evidence of the intention of the defendant on other joints than that of removal of the property, viz., as to whether Ms intention by such removal was to defraud his creditors or defeat them in the collection of their debts. ’ Fourth. That the court erred in the instructions given to the jury, and in refusing the instructions asked by the plaintiffs’ counsel.

This motion is overruled, the attachment is dissolved, and upon the entry of a judgment for the defendant an appeal is prayed and allowed, and the appeal being now here for a hearing, we have an assignment of errors as follows: First. That the court below erred in permitting evidence to go to the jury to show the intent with which the defendant was removing his property. Second. In permitting evidence to show the value of property retained by defendant in the State. Third.

In its instructions to the jury, in so far as these authorized the jury to decide upon the intent of the defendant in removing his property, and upon the fairness of the transaction. Fourth. In refusing the two instructions asked for by plaintiffs’ counsel. Fifth. In overruling the plaintiffs’ motion for a new trial. This is a very important casej and it has received much thought, and consideration.

The first conclusion which our minds have reached with confidence is that it cannot go off upon any literal and absolute construction of the terms “ actually removing his property beyond the State,” as is insisted by appellant. The words are, “ actually removing his property,” and upon the face of the statute these words do not plainly and absolutely negative the idea that an actual removing of the whole of his property is not intended rather’ than the actual removing of a part of his property, or vice versa, or that both and either is not embraced in the terms used.

The plain result from the context is that at the threshold we are met with many inquiries. For instance: Does the statute intend a removal of a part of the property of the defendant? Boos it mean a removal of the whole of his property? Does it embrace both ?

Does it embrace a removal with an intention to return ? 'Is the removal intended only a permanent reihoval, or does it as well include a removal animo revertencli — such a remo val as attends a mere visit to a .neighbor across the State line, in which the carriage and horses of the defendant pass the line, and in which his intention is to return, perhaps in a day, with his property. Is the property here meant every species of property ?

Does it embrace a steamboat which at the time the debt was contracted was engaged in the usual business of trips beyond the State, and when the defendant has done nothing to impair the debt, and everything is in the same condition it was when the debt was contracted ? Does it embrace a bill of exchange purchased by a local merchant and transmitted by mail to his agent in New York or Charleston with directions to collect and apply to his indebtedness at that point ?

If so, this is a removal of property beyond the State never to return, and the creditor, assuming that only a part of his debt was paid, could take out an attachment against his debtor for doing nothing more in fact than paying a part of this identical debt.

We do not propose to determine these questions only so far as they are involved in this case, and they are here stated only to show that it will not do to say that these words express plainly and absolutely what shall constitute a removal or what is indicated either in amount or character by the words “ Ms property.” While the able counsel for appellants agree that it is not every removal that is within the meaning and spirit of the act, and is willing to let the ordinary rules controlling the construction of statutes operate to give this term definition, yet these same principles cannot, it is insisted, be invoked in the dilemma presented by the statute on its face in the use of'the terms aMs property” in the connection in which they stand, and the argument is that those terms include all and every species of property irrespective of amount or character, and independent of the general intent of the statute; that such is the literal construction, and that such is the only construction which can be given consistent with what is claimed to be the manifest legislative policy of the State.

A brief inqxiiry into the history of attachment proceedings will enable us to ascertain with more certainty what is the general purpose, intent, spirit, and effect of these statutes. No such process was known at common law, and the proceeding is traced to a custom of London whereby “ if a plaint was affirmed and was returned nihil" the plaintiff had a garnishment against debtors of the defendant, and after certain proceedings was entitled to judgment.

Under these proceedings, without personal service upon the defendant, debts due the defendant which were not subjects that could be reached by a fi. fa. at law, were subjected to his claim.

In this and most of the othef States, while the remedy extends to subjecting debts due the defendant by process of garnishment as under the custom, it is more comprehensive, extending not only to such sums as may be due the defendant, but making equally subject to its grasp the entire real and personal estate of the defendant, except in so far as local exemptions may protect it, with the additional difference, too, that here there must be either actual or constructive service of the defendant before judgment.

It is a special proceeding at law in the nature of a proceeding in rem, giving an extraordinary remedy to the creditor when the debtor is guilty of any act which manifests fraudulent intent, or has a tendency to impair the debt, or to postpone or delay proceedings at law for its collection, or when on account of non-residence or other enumerated causes, personal service of process cannot be accomplished; thus in effect making the property of the debtor the means through which not only notice is often given of the suit, but by which ultimately, through the instrumentality of a judgment, the claim is satisfied.

Th'ese particular facts or causes are as various as the views of the Legislatures of the several States, and are such as the different interests of commercial or agricultural communities may, in the judgment of those who make laws for them, require.

There is one thing, however, which may be said of this legislation, and which is true of every statute as interpreted by the judiciary, which is, that when there is no concurring fact which operates ta delay or endanger the debt, or impair the means of its payment, by. decreasing the amount of property within the jurisdiction, .or some 'such like thing, the simple fact that the debt is due is never held sufficient. Take the fact’of non-residence.

Here the debtor is beyond the jurisdiction, while his property is within the jurisdiction of the creditor, and we have combined two facts: first, the debt is due; second, there is no remedy within the jurisdiction where there is property. Service cannot he be perfected at law, except through this quasi proceeding in rem. These facts otherwise operating to postpone the collection of the debt and to send the creditor to the jurisdiction of the debtor, unless he has a lien which can be enforced in equity, the remedy by attachment at law is given generally against non-resident debtors.

Tt is for reasons very like unto those above stated, that a remedy is given where the party is about to remove out -of the State, because the natural result of such

an act, under ordinary circumstances, is to place the creditor in a position differing from that which he occupied when the debt was contracted — such a position as hinders its collection, or otherwise operates to the detriment of the creditor on account of a threatened removal of the debtor’s person beyond the jurisdiction.

To give the terms “removing his property out of the State” a strictly literal construction, independent of the intent as well as of the effect of the removal proven in each case, would be inconsistent with the principles which have obtained in the construction of similar statutes in other States. ' To admit that the statute covers a case where there is no bad intent, where there is perfect fairness, and where the amount of the property being removed, in comparison with what is left behind, is very small, and the debtor is entirely solvent, and .the removal is in the ordinary course of trade, is to change entirely the character of the statute.

It is a remedial statute, and it should be so construed as to correct the evils which brought it into existence, and not to create a greater evil by interdicting every species of legitimate trade beyond the confines of State jurisdiction, under the penalty of giving every creditor an absolute lien, with a swift and sure remedy for its enforcement, against a debtor guilty of no act either wrong in intent or prejudicial in effect.

Such a construction as this would result in the imposition of a penalty rather than give a remedy for a wrong, that penalty being the creation, by legal process, of a lien upon the property of the debtor in favor of the creditor, for

an act which is attended by the utmost fairness, and which does not impair the security or delay the remedy of the creditor. This would be to make the law rather a penal than a remedial statute, and while operating to give some additional security to the creditor, its essential characteristic would be.the creation of a lien as a penalty. Such constructionxought to be put upon a statute as best answers the intention the makers had in view, and that intention is to be collected from the cause or necessity of making it.

Can it be said that the results of acts that could in no reasonable degree impair the remedy or security of the creditor was the cause of this statute ? Is the necessity which gave origin to it a necessity for giving every creditor a lien upon the property of his debtor? for such pro tanto must bave been the view of the Legislature if you permit the lien to be created in the absence of any act which changes the relation of parties, or impairs securities, or manifests unfairness, or delays remedies.

A thing which is within the intention of the makers of a statute is as much within the statute as if it were within the letter, (Plowden, 366) and a thing Avhich is -within the letter of the statute is not within the statute unless it be within the intention of the makers. Plow., 18. The construction of no other statute has afforded more ample illustration of the propriety and necessity for these two principles of construction than the attachment law.

In Virginia, for instance, Avhere the act authorises an attachment “against a person Avho is not a resident of the State,” wo have this case: W., living in Virginia, having determined to remove to another State, leaves the place where ho has resided, and departs for the place where he intends to reside. He is held to be a non-resident of the State when he commences his removal, and before he gets beyond the limits of the State of Virginia, within the meaning- of the attachment law. 12 Gratt., 440.

Other cases illustrating this principle are 15 Missouri, 657; 5 Conn., 117; 20 Penn., 144. ■As illustrating the application of the second principle of construction we have two cases in point — one in Louisiana and the other in Mississippi; the last being a case in which the terms “removing his property out of the State” were defined and construed.

The statute in Louisiana authorized an attachment where “ the debtor is about to remove his property out of the State before the debt becomes due.” It was held that the fact that the defendant was about to remove a steamboat, his property, out of the State, engaged in her regular trips, was not sufficient where there was no fraud or intended fraud. 18 La., 867. This act was certainly within the letter of the statute, and it was as clearly not within its true meaning or intent. It did not come within the mischiefs for which the statute intended to provide a remedy.

In Mississippi an attachment was sued out, and the ground assigned was that the defendant “was about to remove his property out of the State.” “It appeared that the defendant, in pursuance of a previously expressed purpose, had removed a part of his property to Louisiana, but that at the time of the attachment he had in Mississippi real and personal property more than sufficient to pay all his liabilities in that State, which he did not remove or intend to remove.” The attachment was dissolved, and the court say: “ The object of the statute is to afford to the creditor a security for his debt in case the debtor is about to remove his property out of the State so as to deprive the creditor of the collection of his debt in this State.

The principle upon which the statute proceeds is the danger of the loss of the debt by the removal of the defendants property, and this reason fails and the remedy provided by the statute plainly does not apply where the debtor is removing a part of his property but does not remove or intend to remove another part of it, subject to the payment of the debt, amply sufficient to satisfy it, and accessible to the creditor’s execution.

For when property to such an amount and so situated remains in the possession of the debtor, and is not about to be removed from the State, it could not be justly said that the creditor’s debt would be in danger of being lost by the removal of another part of the debtor’s property from the State.” 37 Mississippi, 457; 7 Humph., 210.

While these attachment statutes are almost as various as there are States in number, it will be noted as a general rule that there is great unanimity in the judicial construction of like provisions in them, and that the strict letter of the statute is, as a general rule, made to yield to its general purpose and intent, which purpose is nowhere held or intimated to bo to give a creditor a lien because his debt is due, and to subject the debtor to the penalty of having a present incumbrance upon his estate simply because his debt is due and he permits it to remain unpaid.

This is the result of the doctrine urged by appellants when submitted to the test of close analysis. The able counsel for the appellants in this case admit that the case in Mississippi is in conflict with their view that “ the only questions are, Is it his property, and is he actually removing it out of the State?” but it is insisted that while that ease may be good authority under the Mississippi statute, it cannot be so here, because “the statute policy ” of Mississippi is different from the statute policy of Florida. Is this correct?

The attachment law of 1845 in this State gave the remedy when the debt was actually due and the party from whom it was due was actually removing out of the State, or resided beyond the limits thereof, or absconded or concealed himself so that the ordinary process of law could not be served upon him, or was removing his property beyond the limits of the State, or secreting or fraudulently disposing of the same for the purpose of avoiding the payment of his just debts.

The present law gives the remedy when the debt or sum demanded is actually due, and upon affidavit that the party has reason to believe that the person from whom it is due will fraudulently part with bis, her, or their property before judgment can be recovered against him, her, or them, or is actually removing’ his, her, or their property out of the State of Florida, or about to remove it out of the State, or resides beyond the limits thereof, or is actually removing or about to remove out of the State, or absconds or conceals himself or herself, or is secreting- his or her property or fraudulently disposing of the same.

It is thus seen that in the new statute the words “ so that the ordinary process of law cannot be served upon him,” are omitted after the words “absconds or conceals himself,” and the words “ for the purpose of avoiding the payment of his just debts ” are omitted from the last clause of the old statute.

The purpose of the Legislature in the first omission was simply to dispense with any inquiry as to whether a party who had absconded or concealed himself had so absconded that the ordinary process of law could not be served, and its purpose in the last omission was simply to obviate the necessity of proving that the sole purpose of a party who was removing his property from the State, or secreting or fraudulently disposing of it, was to avoid the payment of his just debts.

That is to say, when it was established that the j>arty was actually removing his property out of the State, under the old statute it was necessary to go further, and to allege and prove its purpose to be to avoid the payment of just debts; while under the new statute, whatever might be its purpose, if the removal endangered the debt of the creditor, or was made with wrong intent, it was such a removal as came within the statute, and to this extent was the remedy of the creditor extended.

Besides, the Legislature, no doubt, conceived that proof that the purpose of a fraudulent disposition of property was to avoid the payment of a just debt was unnecessary, as it would be difficult to establish a fraudulent disposition when the purpose was to accomplish the payment of a just debt; that is to say, this clause in the old law, so far as the secreting and fraudulent disposition of property was concerned, was entirely useless and improper.

It is doubted whether those terms in the old statute qualified the words “ removing his property beyond the limits of the State;” indeed, a correct construction of the sentence makes them qualify and limit only the terms “ secreting or fraudulently disposing of the same;” but this is immaterial, as in either event the conclusion reached by appellants is not the legitimate result or effect of the modification. How is it with the statutes of Mississippi ?

They provided for an attachment upon the ground of a removal of property out of the State by the debtor, and in addition to this there was a special clause in the law requiring that the “ act should be construed in all courts of judicature in the most liberal manner for the detection of fraud, the advancement of justice, and the benefit of creditors,” and a careful examination of the attachment statutes of that State will show a “ statute policy ” certainly not behind this State in manifesting an intent and purpose to advance the interest of the creditor, and to secure to Mm .remedies in all cases where there .is any danger to his debt.

We are clearly of the opinion that the giving of such a construction to the statute as appellants contend for, would be inconsistent with every adjudicated case which reaches the question, as well as opposed to the manifest spirit, purpose, and intent of the statute. Having thus taken a general view of the statute, it only remains to apply these principles to the special' matter of this case. It appears that one Simon H.

Frank, the agent of a person living in Michigan, and the defendant, were doing business as merchants in Pensacola, both occupying the same store, the daily sales of the goods of Frank being returned to him “ every night,” each of the parties selling the .goods of the other as called for. During a temporary absence of the defendant in an adjoining county, Frank packed up Ms portion of the goods and removed them from the common store-house with the intention of removing- them to Pollard, Alabama.

Subsequently, as Frank’s stock was incomplete, he proposed to the defendant that he should add some of his goods and complete the assortment of stock, which proposition defendant agreed to, and three boxes of his goods, amounting in value to six hundred dollars, were added, with the understanding that they were to be sent to Pollard, Alabama, and that the parties were to share the profits. These goods, while being removed out of the State, are attached by the plaintiff.

It is in proof that the defendant was indebted in New York three or four thousand dollars, and that when the attachment was levied he had in his store in Pensacola from eight to ten thousand dollars worth of goods, and that there was due and owing him aboirt two thousand dollars in Pensacola.

On the other hand, it is also in evidence that about three weeks before the attachment defendant promised Albert Hyer that ho would provide for the payment of certain notes held by Mm by making deposits of his daily sales with him, and that about this period “ there were auction sales at his store on two or three nights,” and on one occasion in the day time. The amount of goods thus sold does not appear.

There were payments amounting to two hundred and fifty dollars made to Hyer by defendant, which were directed to be applied to Tent account, and the defendant in his testimony states that the balance went to pay necessary daily expenses. It is clear from what has been stated in the foregoing portion of this opinion, that the instructions asked for by plaintiff were properly refused. It is not seen how any state of facts would justify them.

Any removal of goods or property, however small in amount or whatever is their character, which is made with the intent of avoiding the payment of debts, is within the mischief which it was the purpose of the statute to correct, and accepting the facts as they appear in testimony in this case, the instruction of the court covering this point, as well as submitting the question of the fairness of the transaction under all the circumstances to the jury, was entirely proper. What has been said disposes of the first, third, and fourth errors assigned, and the second and fifth remain to be considered.

The second is that the court erred in permitting- the introduction of evidence to show the value of the property retained by the defendant in this State. There is no error here.

Indeed, did it not appear to this court from a general review of this case that the jury had passed upon this fact, and had found that tho amount of property being removed was very small, and that the property remaining in the jurisdiction was amply sufficient to more than satisfy the debt, and in their judgment there was no danger of loss of tho debt by the removal, we would be inclined to direct a new trial; for it is the opinion of the court that in such a ease as this, if the property remaining is not amply sufficient under all the circumstances of the case, then it is such removal as is within the statute, and this, too, independent of any question of intent.

There must be no doubt of tho solvency of the party. Any other view would permit the debtor to remove all of his property beyond tho jurisdiction, in the event he proved it was his purpose to remove it to a point where it could be made more available for the purpose of paying his debt, whieh cannot be. The fifth assignment is that the court erred in overruling the motion for a new trial. The grounds- for this motion are set out in the preceding portion of this opinion.

What has been said disposes of all the grounds upon which this motion was based except the first, which is that the verdict of the jury was against the legal evidence. All of the evidence admitted was proper, and while the facts appearing in the testimony are of such character as to create doubt as to the intent and purpose of defendant in this removal of goods, yet this question being passed upon by the jury, such a case is not presented by this record as would justify this court in directing the verdict to be set aside.

It would have been proper in this case for the court to have extended its charge to other points than that of intent which were properly raised by the testimony, thus, for instance, the point as to the danger of loss of the debt by the removal, independent of the question of intent; such a charge being applicable to that evidence which related to the amount of goods being removed, the amount retained, and the solvency of the party. It is not perceived, however, that the omission to charge upon those facts resulted to the prejudice of the appellant.

Besides, while it is true that if the court assumes to charge at all, it ought to charge on the whole law, yet it is settled that a party cannot, upon error, avail himself of any omission in this respect, unless he has called the matter to the attention of the court below by a prayer for an instruction covering the point. 9 Fla., 176; 2 Pet., 15. The judgment is affirmed.