
    
      No. 4.
    
    HUTCHINSON against LAME AND TRACY, TRUSTEES.
    
      Windsor,
    
    1819.
    
      k person claiming damages, for a conversion of his property, is not a creditor within the meaning of the Statute .
    THE plaintiff, in this case, declared against the principal debtor, in an action of trover.'
    
    The trustees moved to dismiss the suit, on the ground that the plaintiff’ was not a creditor within the meaning o,f the Statute.
    Jn syppqrt of the motion, Marsh contended :
    That the parties do, not stand in the relation of creditor, and debtor f those terms imply an existing debt, and nof a mere claim for damages, either for not fulfilling a special- contract, or for a- tort or trespass; the absconding debtor could not plead in off-set, to such a declaration against him, and thus -the trustee could not defend for him, and creditors would be injured. When the Legislature used the words creditor debt- or, itmust be presumed they knew their meaning, a yd intended to exclude actions of this kind, which are- so uncertain in their Mature. > ■
    
    
      Contra. Plaintiff contended :
    That the word creditor is not confined merely to the. payee, of á contract, but as used in this Statute, means any person, who has, against another, a just and legal claim to recoker damages in a civil suit. This is a remedial Statute : the mischief, under the old law, was, that where the body was concealed, or absconded, and the property in the hands of .trastees, a person having a just and legal claim for damages, in an action oí as-sumpsit, trover,’or trespass, had no means|of .obtaining satisfaction ; the remedy is by securing the property, placed in foe Stands of -the trustees, by this action.
    Without this construction of the word créditor, the remedy is too narrow for the mischief j a man,- whose property is for- _ cibly taken away, or tortiously converted, and the wrong-doer .absconds, is as much entitled to remedy as if he had sold the property, and the purchaser had absconded, and .even more-This construction .can work no injury, either to the principal debtor, or to the trustee ; their rights and safety are preserved;
    It was neyer doubted, Taut that a man, having a claim against the estate of .a person deceased, for forcibly carrying away his property, might enforce that claim before commissioners ; yet, the word ■creditor is the only word in that Statute, under which he can name himself, with regard to such cjaim.
   The Court decided : That the plaintiif’s .case did uóC come within the meaning and purview of the Statute, ^directing the proceedings against the trustees of concealed, or absconding debtors.”

Judgment — That the suit be dismissed' tvitfr Costs,  