9 N.C. 173 | N.C. | 1822
Lead Opinion
The second count was framed on the act of 1796, which enacts that if any person shall remove, or knowingly assist to remove any debtor out of the county in which he shall have resided for the space of six months or more, who shall not have advertised his intention of removal and obtained a certificate of his having so advertised, then such person so removing or assisting to remove shall be liable for all the debts of the person removed in the county from which he removed. The act further provides that the said debts may be recovered by an action on the case, to be brought within twelve months.
By an act of the Legislature, passed in 1820 (subsequently to the commencement of this suit), the act of 1796 was repealed, and it was enacted that if any person or persons shall remove or shall aid and assist in removing, any debtor or debtors out of any county (175) in which he, she, or they shall have resided for the space of six months or more, with an intent by such removing, aiding or assisting to delay, hinder, or defraud the creditors of such debtor or debtors, or any of them, then the person so removing, aiding or assisting, shall be liable to pay all debts which the removed person justly owed in the county from which he removed, to be recovered by an action on the case brought within three years from the time of the removal.
On the trial below the plaintiff proved that Robert Sherrod was indebted to him in the sum named in the first count of the declaration; that at the time the obligation of said Robert became payable he had concealed himself for the purpose of avoiding his creditors; that John Sherrod acknowledged to several witnesses that he had fitted up a horse and cart to convey away Robert Sherrod's family from the State, and that he had furnished said Robert with money to enable him to remove; that he executed a conveyance of the horse and cart and certain negroes to the children of Robert Sherrod previous to the departure of Robert's family; that the cart, together with the family of Robert and the negroes conveyed, set out on their journey from the house of Robert in the night; that John Sherrod expressed apprehension from having been seen with the cart at the time it started; that on one of the witnesses who drew the conveyance before alluded to and to whom he acknowledged his having furnished Robert with money and the horse and cart, he enjoined secrecy, saying that Robert was in debt and lying concealed, and he did not wish his creditors to know it. It was also proved that Robert did remove out of the State and had not returned.
The presiding judge declined giving any opinion on the second count, but charged the jury that if they thought the first count was proved to *98 them that he was of opinion that the law would support a verdict rendered thereon; that the quantum of damages was for them, (176) not for him; that they might, if they thought proper, give the debt and interest. The jury found a verdict for the plaintiff on the first count. A rule to show cause was obtained by defendant, and afterwards discharged by the court, and from the judgment rendered according to the verdict defendant appealed to this court. I think the first count on which the jury have rendered a verdict cannot be sustained. The plaintiff states that the defendant's testator fraudulently, etc., aided and assisted the plaintiff's debtor to abscond. This he might have done, but it is not shown that it was on that account that the debt was lost; it might have been that the debtor was insolvent and would not have paid the debt if he had remained. The single act of assisting the debtor to remove without stating more is not sufficient to render a person liable for a debt due by the person removed, although that assistance may have been given with a fraudulent intent.
It must be remembered that this is a count at common law. Indeed, if this action could be supported it would have been unnecessary to have passed the act of 1820, ch. 1063. That act subjects any person to the payment of the debts of any other person whom they shall remove, provided they shall remove them with an intention of defrauding their creditors. I therefore think the action cannot be supported upon the count at common law, on which a verdict has been found for the plaintiff, and that the rule for a new trial should be made absolute.
Addendum
It is necessary for a plaintiff to state in his declaration, not only that he has sustained a damage, but also how he has been injured; for it is an inference of law and not of fact, that the acts charged amount (177) in law to a legal injury, or such a one as the law redresses. Admitting all the facts charged in the first count to be true, I think they do not amount to a legal injury. It is not stated how a damage arose to the plaintiff from the acts charged on the defendant. It is not alleged that the defendant had any property or other means of satisfying the plaintiff's debt. And if the avoidance of an arrest at the suit of the plaintiff be a legal injury, non constat that the plaintiff would have arrested him, for it is not shown that he was prevented from so doing, for it does appear that he had even taken out process against him. The case which goes farthest *99
upon this subject is to be found in Carthew. In that it is stated that the plaintiff had taken out process against the goods of his debtor, and that the defendant, with a design to injure the plaintiff, had eloigned the goods to distant parts, whereby the plaintiff lost his opportunity of having them taken, and thereby lost his debt. But that case is very distinguishable from the present, for in that an arrest of the goods afforded a means of satisfaction, and the wrongful act of the defendant is charged as the cause of its prevention, the plaintiff having taken out process to that end. The wrongful act of the defendant was intimately connected with the plaintiff's loss, and is stated to be the cause thereof, which deduction may well be called. I think, a legal one. But I think no legal injury can be deduced from the facts stated in this case. They all well may have happened, and yet may have afforded no actual impediment to the plaintiff's claim. Besides, in this case the plaintiff cannot qualify his injury, that is, its nature and extent cannot be stated, for it is quite uncertain whether he has lost the whole or any part of his debt. The defendant may return within a short time, or he may continue long absent, or he may never return, or he may be entirely insolvent, so that a suit against him would produce only trouble and expense. In fact, the plaintiff has given no standard (178) whereby his injury can be measured. I therefore think that at common law the plaintiff cannot recover. But if he had declared upon the statute (I mean that of 1796) I am rather inclined to think that he could have recovered, notwithstanding its partial repeal by the act of 1820. I call it partial, for some of its features are retained by the repealing act, for that declares that he who acts as this defendant is alleged to have acted shall be liable to pay the debts of the debtor. And it has been decided in this Court that a repeal of a penal law releases all penalties, even those given to the party aggrieved, although actions may be pending for them at the time of the repeal, upon the ground that there is no longer a legislative will to inflict the penalty, and that it is not an interference with the rights of individuals acquired under a law whilst it was in force, but the revocation of a mere gratuity which the Legislature have thought proper to confer upon an informer or the party aggrieved, and which it can revoke at pleasure. In this case we have no such legislative declaration, for at no time since the passage of the act of 1796 down to the present time has the Legislature signified its intention that persons guilty of acts such as charged in this case should be exempt from the penalties of that act, for that feature of the act which charges this defendant was retained in the repealing act, and was sanctioned uno flatu
with it; there was not a moment of *100
time between them; but the Court is prevented from taking this view of the case, the act not being declared on. Scroter v. Harrington,
TAYLOR, C. J., concurred.
PER CURIAM. New trial.
Cited: March v. Wilson,
(179)