Dean v. . King

35 N.C. 20 | N.C. | 1851

This is an action of trover for a mare and five hogs, and was tried on the general issue. The case is stated to have been as follows: Prior to July, 1845, the plaintiff was indebted to one of the defendants in a sum of money, for which he executed his bond in 1846. A judgment was afterwards given thereon by a justice of the peace, and a fieri facias issued, which came to the hands of the other defendant, and he, by virtue thereof, seized and sold the mare and hogs in 1849. Plaintiff alleged that these articles were exempt from execution, and, in support of his case, "he gave in evidence the allotment of three freeholders, regularly appointed in 1849, to lay off a provision for him under the act in favor of poor debtors, whereby, a few days before the sale by the constable, the property in question was assigned to the plaintiff." The defendants then gave in evidence a similar assignment of other property to the plaintiff, made about one year prior to that given in evidence by the plaintiff.

The defendants thereon insisted that the mare and hogs were liable to the execution, because, in the first place, the debt was contracted before 1 July, 1845, and the next, because the same allotment was, under the circumstances, contrary to law, and did not protect the property. Upon these grounds, the court instructed the jury that the plaintiff was not entitled to recover, and a verdict and judgment were rendered accordingly, from which plaintiff appealed. Neither of the statutes respecting insolvents exempts a horse nominatim from execution, and it is only in that of 1844, ch. 32, that hogs are mentioned. The case, therefore, turns on that act, and the general words of that of 1848, ch. 38. The act of 1844, "in favor of poor debtors," authorizes three freeholders, appointed by a justice of the peace, to lay off and assign to a debtor, who is a housekeeper, in addition to the property then exempt from execution, certain other articles, namely, the necessary farming tools for one laborer, one bed, bedstead and covering for every two members of the family; two months provisions for the family; four hogs, and all necessary household and kitchen furniture, not to exceed $50 in value; and directs them to make report thereof to the next county court. The property thus assigned is exempt from execution for debts contracted after 1 July, 1845. The subsequent act of 1848 is entitled "An act to amend and consolidate the several acts heretofore passed in favor of poor debtors"; and, after exempting from execution, in the first section, a number of specified articles, it enacts in the second and third sections, in favor of every housekeeper complying with the act, that in addition to those articles "there shall hereafter be exempt the following property, and none other, to wit: one cow and calf, 10 barrels of corn or wheat, 50 pounds bacon, beef, or pork, or one barrel of fish; all necessary farming tools for one laborer; one bed, bedstead and covering for every two members of the family, and such other property as three freeholders appointed, etc., may deem necessary for the comfort and support of such debtor's family; such other property not to exceed in value $50"; and that the freeholders shall immediately make out a full and fair list thereof and return it to the clerk of the county court, to be filed among the records.

It will be observed that, while the act of 1844, in addition to (23) the specified articles, allowed furniture to the value of $50 to be laid off to the debtor, that of 1848, which professes to embrace the whole subject, and thereafter to supersede all the previous acts, suffers any "other property" to be thus laid off to the debtor, provided, only, that it exceed not in value the sum mentioned. Subject to that proviso, it was then competent for the freeholders to assign the mare and hogs to the debtor; and although the provisions for carrying out the purposes of the act seem to be very imperfect and leave a door open for much abuse, it is the duty of the Court to execute those provisions as far as they are capable of execution. As the tenor of the proceedings of the magistrate and freeholders is not set forth, nor any question made in respect of the value put on those articles, or in respect of their actual value, not respecting the return thereof, or notice to the defendants, it is to be assumed that in those and all other points the allotment was admitted to be in conformity to the act, and sufficient save only in the two on which objections were taken at the trial. Upon these two, the opinion of the Court is opposed to that of the presiding judge.

Although the bond on which the judgment was rendered was given for money due on dealings which occurred before July, 1845, yet it was executed after that day, and, to the purposes of the acts, created a debt at that time. It is, ordinarily, the legal operation of a bond to create a debt propriovigore; and it is declared as having that effect, without reference to other considerations. That must be especially true in reference to this question, for the date of the bond is the guide to the officer as to his duty in this respect, and it could not have been meant that a point of so much importance to the poor debtor should depend on the state of accounts between him and the plaintiff at remote periods before their settlement, which the officer would have no means of investigating (24) and deciding properly. As far as we see, the bond was the only security for the debt; and, in a legal sense, the debt arose by force of the bond.

The Court holds, also, that the allotment of 1849 was not affected by that made in the preceding year, under the act of 1844. It is not stated at what period in 1849 the transactions took place. But it is to be assumed to have been after the act of 1848 was in force, and, indeed, the word "hereafter" put the act into operation in November, 1848. Weeksv. Weeks, 40 N.C. 111. Its provisions could not be affected by those of the act of 1844, which it professes to supersede, and, indeed, expressly repeals in the concluding section. But the Court is of opinion that the result would be the same if the two acts were compatible and subsisting together, or if both allotments had been made under the act of 1848. The great purpose of these statutes is to prevent a housekeeper and his family from being deprived of the immediate means of subsistence, by exempting from execution such things as the Legislature deemed requisite to the supply of the pressing wants of food and clothing, and such bedding as would enable them to subsist together. To effect that end, the special allowances must at all times be protected, or rather the debtor must have it in his power to get them protected; and as most of them are necessarily consumed in the intended use of them, it follows that when the articles, once allotted, are consumed in whole or in part, others of the like kind are to be exempted. But in order to exempt them, it is necessary they should be specifically laid off and reported by the freeholders; for the second and third sections of the act do not merely exempt certain quantities of particular kinds of articles, but, on the contrary, authorize articles uncertain, both in quantity and kind, to be laid off. Hence, all the articles must be designated specifically in the report. Indeed, without such a designation, the officer would be (25) continually involved in difficulties as to what was or was not liable to the execution. Such being the object and nature of the proceedings, it is manifest that whenever an execution may come, the debtor is then to have the right to his portion. If there be no change in his effects since they were assigned, there will be no necessity for a new allotment, though a second for the same things can do no harm. But if there be such change in his effects or family, another allotment is indispensable to the purposes of the act. It is equally plain that each and every allotment must be in itself complete in designating all the articles allowed; since, if it were not so, successive allowances might enable the debtor to accumulate a fund beyond the bounty intended in the act, and the officer would be embarrassed as to the identity and value of the things mentioned in the different allotments and those remaining specifically. The conclusion, therefore, is that the second allotment in this case was proper, and may have been indispensable to give the debtor the full benefit of the act; and supposing the allotment not to have been in itself otherwise defective, the plaintiff is necessarily entitled to this action.

PER CURIAM. Judgment reversed, and venire de novo.

Cited: Schonwald v. Capps, 48 N.C. 343;Ballard v. Waller, 52 N.C. 86,87; Lloyd v. Durham, 60 N.C. 285; Hill v. Kesler, 63 N.C. 444;Islerv. Kennedy, 64 N.C. 531; Frost v. Naylor, 68 N.C. 326.