Hart v. Dean
| Decision Date | 12 June 1901 |
| Citation | 49 A. 661,93 Md. 432 |
| Parties | HART v. DEAN (RONEY, Garnishee). |
| Court | Maryland Court of Appeals |
Appeal from circuit court, Cecil county; James A. Pearce, Frederick Stump, and William R. Martin, Judges.
Action by Alexander J. Hart against Joel H. Dean. James Rooney was attached as garnishee. From an order quashing the attachment plaintiff appeals. Affirmed.
Argued before McSHERRY, C.J., and FOWLER, BOYD, and SCHMUCKER, JJ.
Wm. S Evans and L.M. Haines, for appellant.
Albert Constable, for appellee.
An attachment was issued by the appellant against Joel H. Dean which was, on motion of the appellee, quashed. There are two bills of exception in the record; the first presenting the ruling of the court below on an objection to certain evidence offered, and the other having reference to the order quashing the attachment. As the first has been abandoned, it is only necessary for us to consider the second exception, which involves, primarily, the construction of chapter 579 of the Acts of 1900, being section 18 of article 83 as found in the Supplement to the Code. That section provides that: "A sale of any portion of a stock of merchandise otherwise than in the ordinary course of trade in the regular and usual prosecution of the seller's business, or a sale of an entire stock of merchandise in bulk, will be presumed to be fraudulent and void as against the creditors of the seller," unless the seller and the purchaser shall, at least five days before the sale, make an inventory as therein provided, and unless the purchaser shall in good faith make certain inquiries as to the creditors of the seller, and give them notice of such proposed sale. The seller is also required to fully and truthfully answer in writing each and all the inquiries to be made of him. The appellee purchased of Dean his entire stock of merchandise in bulk, and it is admitted the provisions of this section, which we need not set out more fully, were not complied with. The contention of the appellant is that the sale was fraudulent and void by reason of the failure of the parties to do what is required by this act, and the property thus sold is liable to attachment for fraud, without regard to the other evidence. We do not, however, so construe the statute. It says such sale "will be presumed to be fraudulent and void" unless, etc. If the legislature had intended that it should be conclusively presumed to be fraudulent, it would doubtless have said so; or, if it had intended to prohibit all sales of stocks of merchandise in bulk unless these provisions were complied with, it would have used other language than that to be found in the statute. There was no reason for saying that the sale "will be presumed to be fraudulent and void" if the legislature had intended that it should be absolutely void unless the various requirements are complied with. The language used not only does not necessarily have that meaning, but it suggests the contrary. A party accused of crime, when put on trial, is presumed to be innocent; and in civil proceedings good faith is presumed, under the ordinary rules of evidence; but no one understands from the use of the word "presumed" in those connections that the presumption cannot be overcome by proof. As we read this statute, we find that, instead of saying that such sales shall be fraudulent and void, the legislature only declared that they "will be presumed" to be so, which conveys the idea that they will be so considered until the contrary is proven. If anything more than the language itself be necessary to justify the construction we have placed on it, section 19 of this act of 1900 furnishes it. It reads: "Except as expressly provided in the preceding section nothing therein contained nor any act thereunder shall change or affect the present rules of evidence in the present presumptions of law." It thereby declared that it was changing or affecting "the present rules of evidence," etc. Prior to the passage of the act, the presumption was that such a transaction was bona fide, and the burden was on the one attacking it to prove fraud; but the statute shifts the burden of proof unless its provisions are complied with. The difficulty in proving fraud was doubtless known to the members of the legislature, and, as those endeavoring to do so were frequently without evidence unless they made the parties to the alleged fraud their witnesses, it is apparent that the legislature thought it would lessen, if not relieve, the difficulty by casting the burden on the parties to establish the bona fides of such transactions. To have made such sales absolutely void and conclusively fraudulent unless the...
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