
    Fassett vs. Tallmadge and others.
    In an action brought to set aside a conveyance of personal property made by a debtor of the plaintiff to the defendant T., on the ground of fraud, the court declared the sale to be fraudulent and void as against the plaintiff and other creditors of the grantor, ordered the conveyance to be set aside, and directed T. to pay to a receiver a specified sum for the property so received by him, with costs. Held that the plaintiff could not, on the return of an execution issued on such judgment, against the property of T., unsatisfied, issue an execution against the person of T., without leave of the court.
    In an action against the grantee in a conveyance, to set the same aside as having been made in fraud of the grantor’s creditors, the grantee is not liable to be arrested on the ground of fraud in “ contracting the debt or incurring the obligation to enforce which the action was brought.”
    Heither the 1st section of the act to abolish imprisonment for debt, nor the 4th subdivision of section 179 of the code, apply to the case of a proceeding in equity to set aside a conveyance or assignment of personal property.
    
      HIS was an appeal from an order made at a special term, setting aside an execution issued against the person, of the defendant S. W. Tallmadge, after an execution issued against his property had been returned unsatisfied. The execution against the person was issued without any order of arrest having been granted, either before or after judgment. The opinion of the court states the other material facts.
    
      D. B. Eaton and W. C. Hornfager, for the appellant.
    
      Elbridge T. Gerry and Wm. Ourtis Noyes, for the respondent.
   By the Court,

Ingraham, P. J.

This action was brought to set aside a conveyance made by a debtor of the plaintiff to the defendant Tallmadge, on the ground that it was fraudulent and void as to creditors. The court so decreed, and ordered the sale made to Tallmadge to be declared fraudulent and void as against the ‘plaintiff and all other creditors who should come in under said judgment, and the defendant Tallmadge to pay to a receiver appointed by the court a sum of money for the property so received by him. The judgment also ordered that the plaintiff should recover against the defendant his costs. An execution was issued against the defendant’s property for the costs, which was paid. An execution was also issued for the moneys directed, to be paid to the receiver, which was not collected. And an execution against the person was then issued against the defendant, without any order of arrest either before or after judgment. The defendant moved to set aside the execution as irregular, which motion was granted at special term, and the plaintiff has appealed.

By the 288th section of the code, an execution can only be issued against the person in one of those cases in which the defendant might have been arrested under sections 179 and 181.

None of the subdivisions of the 179th section relate to an action .in which fraud in contracting the debt or obligation exists, except, the 4th, and that applies only to a case where the fraud was committed in contracting the debt or incurring the obligation for which the action is brought. I am at a loss to understand how the defendant can be charged with contracting a debt or incurring an obligation to the plaintiff. The plaintiff 'g action rests on a supposed fraud perpetrated by the vendor to the defendant, with intent to defraud the creditors of the vendor. It is not even necessary, to maintain such an áction, that the vendee should be a party to the fraud knowingly. He may know of sufficient facts to charge him with notice, and yet as a vendee be innocent of any actual fraud in making the purchase, and still the court would declare the sale fraudulent. The same thing might occiir in the case of an assignment made for the benefit of creditors, where the assignee might be entirely free from any actual fraud, and yet the assignment be declared fraudulent and void. To hold that under such circumstances the vendee or assignee is guilty of fraud in contracting an obligation, and therefore liable to arrest, would be at variance with all the provisions of law since the act of 1831 abolishing imprisonment for debt.

When this case was brought before Mr. Justice Mtjlliu, on a motion, for an attachment, he seems to have assumed that the defendant was liable to arrest. He says: This defendant is, I presume, liable to be imprisoned on execution in this case. Fraud is charged and proved, and in such an action the body of the defendant. may be arrested and imprisoned.” For this he cites the 179th section of the code and 3 B. S. 126, § 1, being the first section of the act to abolish imprisonment. With the great respect I entertain for the opinion of this learned justice, I have hesitated to dissent from the views thus ex2oressed by him. But I cannot resist the conclusion that he has overlooked a requisite in both statutes referred to, which would materially alter the case. The 1st section of the act to abolish imprisonment, and the 179 th section of the code, in the 4th subdivision, are expressly confined in their operation to cases of contract, or in which the debt is contracted or an obligation is incurred. E either of them apply to a case like the present, where the action is a proceeding in equity to set aside a conveyance or assignment of personal property.

[New York General Term,

May 5, 1862.

It seems to me, also, that the learned justice has overlooked the real party who is guilty of the fraud. In ordinary cases of this character, the party making the sale or conveyance, and not the party receiving it, is the one who is guilty of fraud.

■A reference to the interlocutory judgment will show that it was the sale and not the acts of the defendant Tallmadge that was declared void. And the final decree recognized as valid, payments made by Tallmadge to the firm who made the sale, and to their creditors on account of the property, to the amount of over §20,000. Can it be that any court can be said in the same judgment to hold that the purchaser of property is a bona fide holder for value, and at the same time that he is a fraudulent purchaser liable to be arrested for the fraud ? I forbear referring to the other questions which have been discussed. It is not material to the decision of this case that we should examine them. If the plaintiff was not satisfied with the decision on the motion for an attachment, he should have appealed. If such an attachment was unnecessary,- and the compliance with the order could be enforced by execution under the 285th section, we need only say here, that nothing in that section authorizes an execution against the person.

Whatever other course the plaintiff may be entitled to take to enforce compliance with the judgment, he has no right to do it by an execution against the person, without any order of the court.

The order appealed from should be affirmed.

Ingraham, Leonard and Rosekrans, Justices.]  