Cooke v. Cooke

Robinson, J., delivered the opinion of the Court. Judgment was recovered by Harriet Coóke against Israel Cooke, in an action of slander, for the sum of five thousand dollars. While the suit was pending, Israel Cooke, the defendant, conveyed to Theodore Cooke, his son, certain goods and chattels, fhe consideration set forth in the bill of sale being one thousand dollars. Upon the judgment thus recovered, attachment was issued and laid in the hands of Theodore Cook as garnishee.

The bill of sale being valid as between the parties, the appellant contends that its validity cannot be impeached at lato, except by a party having a lien on the property. Conceding this to he true, it is well settled, we think, in this State, that a party does acquire an inchoate lien on property, by a writ of attachment laid in the hands of the grantee. Curtis vs. Moore, 20 Md., 93 ; Foley vs. Bitter, 34 Md., 650 . In Wanamaker vs. Bowes, 36 Md., 42 , no such lien was acquired, because the writ of attachment itself was invalid.

Then again, it is said, that Harriet Cooke was not a creditor of Israel Cooke, at the time of the execution of the bill of sale, and that the action of slander then pending, is not within the protection of the Statute of 13 Elizabeth, chapter 5. Now that statute declares that “any conveyance, &c., made to the end, purpose and intent to delay, hinder or defraud creditors and others, of their just and lawful actions, suits, debts, accounts, damages, penalties, &c., shall be void.” The object of this statute, was the suppression of frauds, and ought to receive a liberal construction. ⁵³¹ So early as Twyne’s Case, 3 Coke’s Rep., 83, it is said to have been resolved by all tbe barons : “That the statute of 13 Eliz., ch. 5, extends not only to creditors, but to all others toho had cause of action or suit., or any penalty or forfeiture; ” and since then it has been repeatedly held 1o embrace actions of slander, trespass and other torts. Jackson vs. Myers, 18 Johns., 425 ; Fowler vs. Frisbie, 3 Conn., 320 ; Hall vs. Sands, 52 Maine, 355; Barling vs. Bishop, 29 Beav., 417; Langford vs. Fly, 7 Hump., 585. The mere fact that the declaration in the action for slander brought by Harriet Cooke was defective, and did not set forth a good cause of action at the time tlie bill of ^sale was executed, does not in any manner affect tbe question, because the action remained the same, and by'necessary legal intendment was brought for the cause ultimately declared on.

But it is further contended, that Theodore Cooke was a purchaser for a valuable consideration, and that the conveyance is therefore exempt from the. operation of the statute. It is a sufficient answer to say, that the transfer must not only be made on good consideration, but must also be bona fide. If not made in good faith it is void, although the grantee may have paid a full consideration, for the law will not permit one man to assist in cheating another. Cadogan vs. Kennet, Cowper, 432; Worseley vs. DeMattos, 1 Burr., 461; Devon vs. Watts, Doug., 86; Stein vs. Herman, 23 Wis., 132 ; Robinson vs. Holt, 39 N. H., 557; Glenn vs. Grover, 3 Md. Ch.

Dec., 29; Worthington vs. Bullitt, 8 Md., 201 . Admitting then, that the hill of sale in question was made on good consideration, yet if it was executed by Israel Cooke for' the purpose of defrauding Harriet Cooke, or preventing her from reaping the fruits of the judgment in the action of slander, should such judgment be recovered, and Theodore Cooke the grantee had knowledge of, and participated, in this purpose, it comes ⁵³² within the statute, and is therefore void. The burden of proof, rests of course upon the appellee assailing the conveyance, for the law presumes it bona fide until the contrary is shown. In regard to the nature and character of the evidence admissible in cases of this kind, involving the fraudulent intent of parties, a wide