
    Smith v. Blake.
    In the Court below,
    Eli Smith, Plaintiff; Reuel Blake, Defendant.
    
    An action on the case will not lie in favor of the creditor of a person who is insolvent, against d third person,; charging him with having . fraudulently j taken and ! claimed the j property of tjie insolvent, his own, to defraud the creditors , f
    TTh IS was an action on the case, stating, that Stephen Kanney was indebted to the plaintiff, to a certain amount, by two promissory notes ; that a short time before the same became due, he was the owner of considerable property, as oxen, cows, &c. and had the improvement of a forge, &c. more than sufficient to pay said demand ; that being in debt, and embarrassed, he proposed to the defendant to assist hint in concealing- his property, from his creditors ; that the defendant, to effect this purpose, pretended to, hire himself to said Ranney, and soon afterwards claimed, that Ranney was indebted to him for services, &c. and took an assignment of all Ranney’s visible property ; that the defendant ostensibly appeared to be the owner thereof, by using it, &c. and, till within a short time, had always affirmed to the plaintiff, and the world, that the property came into his hands, in a legal manner, and in good faith, and that he was a large creditor to Ranney., and knew no means of satisfying his debt ; and that the plaintiff was thereby-•induced to suffer his claim to remain dormant, and had never been able to secure the same. The declaration then averred, that Ranney was never indebted to the defendant, and was, in fact, the owner of all the property, vrhich apparently belonged to the defendant ; that the defendant, for his labor, was secretly paid out of the avails of the iron business, See. and that Ranney was entitled to the residue of the avails, though the same were secreted by the defendant. And the defendant, designing to injure the plaintiff, in pursuance of his combination with Ranney to cover and conceal his property from his creditors, held the same under false, colours; and in September last, actually levied upon said property, in his own name, as being the property of Ranney, though then it was actually in his own possession; by means whereof the plaintiff has been prevented from collecting his debts, and lost the same, Ranney being a bankrupt, and wholly unable to pay. Writ dated March ldth, 1C01.
    1804.
    The defendant pleaded the general issue, and a verdict was found for the plaintiff'.
    ' On a motion in arrest, for the insufficiency cf the declaration, the Superior Court adjudged the same to be insufficient.
    
      Ingersoll, and Smith, (of Litchfield) for theplaintiff ⅛ error.
    This declaration states, that the plaintiff was a c reditor of Ranney ; that the defendant combined with lionncij to cheat him out of his debt; that he received Ranney's property, and affirmed that it was his own, and thus prevented the plaintiff from securing himself; that the same was false and fraudulent, and designed to injure the plaintiff; and that, jn consequence thereof, the plaintiff actually lost his debt. Had the plaintiff levied upon this property as Ranneifu, he could have held it; if, therefore, the defendant affirmed facts to exist, which did not exist, and the plaintiff has been deceived thereby, the case compares with Paisley v. Freeman, 
       It makes no difference whether he told a lie in terms, or held out false colours. If a person dresses out a poor man as a gentleman ; goes with him where they are not known ; gives him a title, See. though he says, when enquired oí respecting the circumstances of the man, that he does not know what they are : still he will be liable, if such person gain credit, in consequence of such appearances. So, if one secrete a bankrupt, and tell an officer, that he knows nothing about him, the Superior Court have decided, that such person shall he liable.
    Had the plaintiff gone with his writ, and been prevented from serving it, by this affirmation of the defendant, an action would have lain. And it is no objection, that many persons might bring suits, if he had been the instrument of defrauding many ¡ — -though, perhaps, the Court Would say,that the first should hold to the amount of the property concealed.
    
      The statute respe cting fraudulent conveyances  may be cited against us; but from that statute we contend, that this action may be maintained, because the plaintiff is aggrieved. The statute, indeed, spc-iks of a qui-tam process ; and such an one doubdess might have been brought, had it been commenced in time. But if a statute gives a pen&ltv, may notan action at common law lie for the same offence, where the penalty has been waived ? Where a bond, with penalty, was taken by a master, to secure the stay of his servant, it was held, that an action would not lie against die person enticing him away, after the bond had been collected ;  but it seemed to be admitted, that liad not the bond been collected, it would have been sustained. Here, the remedy upon the statute has not been pursued; the party aggrieved, therefore, may have an action at common law.
    
      Gould, for the defendant.
    The present action is as novel in principle, as destitute of precedent. Fraud without damage, or damage without fraud, does not constitute a ground of action.
    The plaintiff states that he had a claim against Ranneij ; raid the defendant fraudulently accepted the property of Harinea. But docs the plaintiff state, or could lie know, that if this had not been done, he should have been the first to attach this property, or that there was sufficient of it to satisfy all the creditors ? The plaintiff had no lien upon the property; It remained the property of Han-r.nj. But, u is said, it was done with a fraudulent invent ; hut the damage to the plaintiff is no greater, than if there had been no such intent.
    
      No right of the plaintiff’s has been affected. There was only a chance that he might have a right. Suppose C. is a creditor of A — and B. cheats A. out of his estate ; can C. recover of B. because by his conduct C, 1 tas lost his debt ? Or, suppose that C. is about to conclude an advantageous bargain with A. — and B. knowing of it, to defraud C. destroys the property, which C. was to receive; can C. maintain an action, having no right to the property ? Let the fraud be as great as can be imagined, C. having no right to the property, can have no right of action.
    But the plaintiff has not even stated, that he should have attached this property as Ramey's. In Pasley v* Freeman, there was not only the grossest fraud stated, but, also great damage.
    
    Again, it is not stated, in-this declaration, that the property was concealed. ■ The plaintiff might, therefore, have attached it. The averment, that he was prevented, &c. is merely an inference from the facts before stated. Neither is any rule of damages stated. The defendant is equally liable to all the creditors of Ranney, and mav be subjected to a thousand fold more than the amount of the property received. Civil actions will, in this way, be made the instruments of vindictive justice, And, fay the same, rule, the creditors of Ranney s creditors may maintain an action against the defendant. The principle contended for by the plaintiff opens a door to litigation, without end.
    Our statute against fraudulent conveyances has provided a remedy ; and part of the penalty is given to the party aggrieved, and part to the public. After this, he surely is not tó be liable to all the creditors. The statute of Elizabeth, of which ours is a transcript, has existed about 250 vears, and tvas in affirmance of the common law. Many fraudulent conveyances have doubtless been made since, in Great-Britain ; but never was an action of this kind brought into V/1. stirs inster-I I all.
    
      
       o Tértn Re$. 51.
    
    
      
      
        Suit. $17.
    
    
      
       3 Burr- 1345, Bird v. Mandad.
      
    
   By the Court,

The judgment tvas affirmed*  