a party to a fraudulent conveyance may be brought in the county where either of the parties reside, for the benefit of the plaintiff and the treasurer of that county, but not in a state other than that in which the conveyance was made.38 Several creditors, having distinct and separate debts due to them severally from the same debtor, cannot join as plaintiffs in an action qui tam against such debtor to recover the penalty given by statute for being party to a fraudulent conveyance or judgment. A joint action against a fraudulent grantor and grantee, to recover the penalty for being a party to a fraudulent conveyance, cannot be maintained, and if both are joined as defendants, and a verdict is obtained against them, judgment will be reversed.40 39 § 8. Pleading; defenses; evidence. In an action to recover the penalty for knowingly aiding a debtor in a fraudulent transfer of his property, all the elements material to the plaintiff's case must be affirmatively and distinctly stated, and a declaration is insufficient unless it allege that the defendant did knowingly aid and assist in the fraudulent concealment or transfer of the property of the debtor, which was liable to seizure by attachment or levy on execution by the plaintiff," and that plaintiff was at the time of such fraudulent concealment or transfer, and at the time the action was commenced, a creditor of such debtor.❝2 It is also necessary to aver the time when the fraudulent transfer was made.43 An amendment will not be allowed of ar additional count, alleging a fraudulent transfer of other property, under which the damages claimed were not in any way embraced in the first count." A count alleging several distinct transfers of property, all pertaining to the same demand, is not bad for duplicity. It is no defence to an action for a penalty for making 45 Forbes v. Davison, 11 Vt. 660; Den- 38. Slack v. Gibbs. 14 Vt. 357. Atl. 779; Herrick v. Osborne, 39 Me.231. 45. Platt v. Jones, 59 Me. 232. 49 46 a fraudulent conveyance that the plaintiff did not direct the commencement of the suit, as, if he does not discontinue it, he will be taken to ratify it. A defendant, who has received a transfer from the debtor and certificate for five shares of bank stock, cannot deny his title thereto because the endorsement upon the certificate recites the transfer of the "within share," instead of the "within shares."47 The debtor is a competent witness for the plaintiff in an action to recover the penalty for aiding a debtor in making a fraudulent transfer.48 Admissions of the debtor, who is not party to the suit, made previous to the alleged fraudulent sale, may be given in evidence by the plaintiff for the purpose of establishing the fact of the debtor's indebtedness to him; but it is not competent for the plaintiff to prove, for the purpose of establishing such indebtedness, any declarations made by the debtor subsequent to the time of the sale.50 In an action to recover the penalty full proof must be made, as in criminal cases, and the case must be established beyond a reasonable doubt.51 To entitle a creditor to recover he must show that he has a just debt; that his debtor has fraudulently transferred his property to defendant; that such property was liable to be taken on execution or attachment; that defendant has knowingly aided the debtor to defeat the rights of his creditors; and the amount of plaintiff's damages.52 Where the testimony as to intent is conflicting the plaintiff is entitled to have the case submitted to the jury.53. Where the evidence is insufficient to go to the jury, a nonsuit is properly ordered. Parol testimony is not admissible to prove the transfer of stock on the books of a bank.55 54 46. Forbes v. Davison, 11 Vt. 660. 47. Skowhegan Bank v. Cutler, 49 Me. 315. 48. Aiken v. Kilburne, 27 Me. 252; Philbrook v. Handley, 27 Me. 53. 49. Aiken v. Peck, 22 Vt. 255. 50. Barnum v. Hackett, 55 Vt. 77; Aiken v. Peck, 22 Vt. 255. 51. Brooks v. Clayes, 10 Vt. 37. 52. Daniel v. Vaccaro, 41 Ark. 316; Pulsifer v. Waterman, 73 Me. 233; Quimby v. Carter, 20 Me. 218. 77. 53. Barnum v. Hackett, 35 Vt. 54. Gardiner Nat. Bank v. Hagar, 65 Me. 359. 55. Skowhegan Bank v. Cutler, 49 Me. 315. 89. Criminal prosecutions.-In many of the states, statutes have been enacted making it a misdemeanor for any person to convey his property with intent to defraud his creditors.56 The foundation of these statutes is the statute of 13 Elizabeth, c. 5, by which it was made a criminal offense to be a party to a conveyance made to hinder, delay, or defraud creditors, and 27 Elizabeth, c. 26, by which it was also made an offense in all parties concerned to make a conveyance in trust or for uses with a view to defraud creditors. Both of the statutes are in force in Pennsylvania. In Alabama, under a statute against the fraudulent concealment of a debtor's property, one who buys, receives, and leases property without knowledge of any claim, and then refuses to inform claimant of its location, is not guilty of a concealment.5 58 57 § 10. Offenses; fraudulent transfers.-A fraudulent transfer of property, in some of these statutes, includes secreting, assigning, transferring, concealing, encumbering, selling, or in any way fraudulently disposing of property, and in a prosecution the criminal act cannot be limited to that by which the owner delivers it to any person, with the intent of passing the right he had in it to such person.59 In some jurisdictions these statutes are held to apply to personal property only," while in other jurisdictions they are held to apply to a fraudulent transfer of real estate as well as of personal property. The offense of disposing of property with intent to defraud creditors is complete when the disposition is made, though the creditors intended to be defrauded are not judgment creditors and in a condition to question the validity of the transfer in the form of a civil remedy. 56. See the statutes of the various States. 57. Ex parte Doran, 2 Pars. Eq. Cas. (Pa.) 467. 58. Thomas v. State, 92 Ala. 49, 9 So. 540. 59. Herold v. State, 21 Neb. 50, 31 N. W. 258. 61 60. People V. District Police Justice, 41 Mich. 224, 2 N. W. 25. 61. Costello v. Palmer, 20 App. Cas. (D. C.) 210; Durham Fertilizer Co. v. Little, 118 N. C. 308, 24 S. E. 664. 64 65 All creditors are within the meaning of the statute.62 To constitute the statutory offense there must be an actual fraudulent intent to injure and defraud creditors.63 The fact that the conveyance is constructively fraudulent is not sufficient. An essential element of a fraudulent transfer is that the possible operation of the conveyance shall be prejudicial to creditors. A statute imposing a penalty of fine and imprisonment for willfully and knowingly purchasing, in block, goods and merchandise unpaid for by the seller, and without exacting from such seller a sworn written statement that the goods and merchandise have been paid for, does not apply to the case of a wife who receives such goods by dation en paiement from her husband in restitution of her paraphernal property received and alienated by him. In some jurisdictions there are statutes making it a misdemeanor for any person to execute a conveyance of encumbered property without reciting or describing the encumbrance. Under such a statute it has been held that, if the fraudulent intent exists, the fact that no one was actually defrauded by the second conveyance is immaterial.68 67 § 11. Preliminary affidavit on application.—An application to a circuit court commissioner, under the fraudulent debtor's act, for the imprisonment of a debtor who has assigned his property with intent to defraud creditors, must make out facts 62. People v. Underwood, 16 Wend. (N. Y.) 546; Reg. v. Smith, 6 Cox C. C. 31; Reg. v. Henry, 21 Ont. 113. 63. State v. Marsh, 36 N. H. 196; Commonwealth v. Hickey, 2 Pars. Eq. Cas. (Pa.) 317, 1 Pa. L. J. Rep. 436, 3 Pa. L. J. 86. A fraudulent intent may properly be inferred where a debtor, on demand of payment of his debt, sells out to his brother to avoid an attachment, and refuses to give any information about the transaction. Smit v. People, 15 Mich. 497. 64. Watson v. Hinchman, 42 Mich. 27, 3 N. W. 236; Commonwealth v. Hickey, supra. 65. State v. Chapman, 68 Me. 477; State v. Bragg. 63 Mo. App. 22. 66. Compton v. Dietlein & Jacobs, 118 La. 360, 42 So. 964. 67. Commonwealth v. Brown, 81 Mass. 189; State v. Wilson, 66 Mo. App. 540. 68. State v. Wilson, 66 Mo. App. 540. amounting to a prima facie case of fraud." The complaint must set forth such facts and circumstances, which are within affiant's own knowledge, as will authorize the officer issuing a warrant to find such a state of facts as required by statute; and hence an affidavit that affiant "has good reason to believe," or that he "is credibly informed," that such facts exist, is insufficient. A warrant may not issue without satisfactory evidence by plaintiff or some other person of the facts required by the statute. It cannot be issued upon hearsay, nor upon any statement, however positive founded upon hearsay." § 12. Indictment.-An indictment for fraudulently conveying or otherwise disposing of property with intent to defraud creditors should be sufficiently certain in its allegations to inform defendant of the offense with which he is charged. The offense as defined by the statute must be substantially set forth in the indictment." An allegation that defendant removed his property to places unknown is not equivalent to a charge of secreting or removing it from the county. It is sufficient to charge the offense in the language of the statute, or in language of equivalent meaning, especially where in doing so the fact is expressly alleged in the doing or not doing of which the offense consists.75 The value of the property must be stated. The time of the concealment or other disposition must be alleged." A fraudulent intent should be averred. It is sufficient to state facts showing that the conveyance was corruptly executed to defraud creditors.78 The indictment need not set forth the character of the debts or 74 69. In re Teachout, 15 Mich. 346. 70. Proctor v. Prout, 17 Mich. 473. Contra, Costello v. Palmer, 20 App. Cas. (D. C.) 210. 71. State v. Leslie, 16 N. H. 93; Commonwealth v. Brown, 81 Mass. 189; Commonwealth v. Gallagher, 2 Clark (Pa.), 297, 4 Pa. L. J. 58. 72. Thomas v. People, 19 Wend. (N. Y.) 480. 73 73. State v. Miller, 98 Ind. 70; Respublica v. Tryer, 3 Yeates (Pa.), 451. 74. State v. Miller, 98 Ind. 70. 75. Hartman v. Commonwealth, 5 Pa. St. 60. 76. Thomas v. People, 19 Wend. (N. Y.) 480. 77. Respublica v. Tryer, 3 Yeates (Pa.), 451. 78. State v. Miller, 98 Ind. 70. |