Jenks v. Hoag

• Decision Date: 18 October 1901
• Citation: 179 Mass. 583,61 N.E. 221
• Parties: JENKS v. HOAG.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 Mass. 583

61 N.E. 221

JENKS v. HOAG.

Supreme Judicial Court of Massachusetts, Hampden.

October 18, 1901

COUNSEL

John L. Rice, for appellant.

Charles E. Hoag and Stephen S. Taft, for appellee.

OPINION

KNOWLTON J.

This case is before us on the plaintiff's appeal from an order sustaining the defendant's demurrer and directing a judgment for the defendant. A question much discussed by the parties is whether the averments of the declaration state a case of damage directly resulting from the defendant's wrong, which can be the foundation of a judgment in an action fo tort. The allegations of the declaration virtually charge the defendant with subornation of perjury. He is accused of having conspired with his client to present false testimony which should prevent the plaintiff's intestate from obtaining an order for the payment to him of a sum of money. The defendant contends that this case is governed by the decisions in many cases which hold that no action lies for conspiring with a debtor to fraudulently dispose of his property to keep it away from his creditors. See Lamb v Stone, 11 Pick. 527; Wellington v. Small, 3 Cush. 145, 50 Am. Dec. 719; Bradley v. Fuller, 118 Mass. 239; Adler v. Fenton, 24 How. 407, 16 L.Ed. 696; Austin v. Barrows, 41 Conn. 287; Klous v. Hennessey, 13 R.I. 332; Moody v Burton, 27 Me. 427, 46 Am. Dec. 612; Hall v Eaton, 25 Vt. 459. None of these cases is identical with the present case, and it is unnecessary to determine whether the principles established by them are so far applicable to the facts set out in the declaration as to be decisive of the question. We are of opinion that the demurrer was rightly sustained on another ground. This action is brought by the administrator of the original judgment creditor to whom the wrong is alleged to have been done. It is a general rule that actions of tort do not survive. Pub. St. c. 165, § 1. The statute creates certain exceptions to this rule, of which the only one necessary to be considered is that referring to actions 'for damage done to real or personal estate.' The plaintiff contends that this case falls within this exception, and argues that the suit is brought to recover for damage done to the judgment, which is personal estate. It has been decided repeatedly that 'a mere fraud or cheat by which one sustains a pecuniary loss cannot be regarded as a damage done to a personal estate.' Leggate v. Moulton, 115 Mass. 552, and cases there cited. See, also, Cutter v. Hamlen, 147 Mass. 471, 18 N.E. 397, 1 L. R. A. 429. The statute wa...