27 N.C. 649 | N.C. | 1845
The plaintiff obtained a judgment before a justice of the peace, against the defendant, Floyd, and sued out a ca sa., on which Floyd was arrested. He gave the usual bond, with sureties for his appearance at the next county court, to take the benefit of the act for the belief of insolvent debtors. A person by the name of Miller likewise had a judgment against Floyd, on which he was also taken, and he (650) gave bond, as in the other case, to appear at the same term of the county court. Floyd filed a schedule and gave a notice both to Williams and to Miller of his arrest in each of the cases, and of his intention to take the oath of insolvency and move for his discharge in each case. At the county court, Williams suggested, in his case, a fraudulent concealment of certain property by the debtor, and Floyd took issue thereon. In like manner, Miller also suggested in his case, a fraudulent concealment of property, and Floyd again took issue thereon. Upon separate trials of the issues the juries found the fraudulent concealments, as alleged by the creditors, respectively. This was at the same term, and from the judgments Floyd appealed and gave appeal bonds, with sureties, in each case. In the Superior Court the sureties in the bonds, taken by the sheriff for the debtor's appearance in the county court, surrendered him, in each case, in discharge of themselves, and he was thereupon committed to the custody of the sheriff, and was confined in prison. Subsequently the issue joined between Miller and Floyd, in the case between them, was tried, and a verdict was found for the defendant, that he had not concealed his property as suggested; and thereupon Floyd was admitted to take the oath of *455 insolvency, and discharged, in that case, by order of the court. The same order for Floyd's discharge was made in the suit brought by Williams, without trying the issue therein, upon the ground that he had been discharged in the suit brought by Miller, and that Williams had notice that he intended to move to be discharged in that suit. But, during the same term, the court set aside and expunged the last order, namely, that made for Floyd's discharged in Williams' suit, and the case was then continued by consent. At the next term the plaintiff, Williams, desiring to proceed to trial of the issue, the defendant Floyd was called, and he failed to appear; and thereupon the plaintiff's counsel moved for judgment on the appearance bond against the debtor and his sureties therein, to be discharged by the payment of the debt and costs; but the court refused the same, because those sureties had discharged themselves by surrendering their principal. (651) The plaintiff then moved for judgment against Floyd for the debt and the costs of that proceeding. That motion was opposed upon the grounds, (1) That Floyd had been duly discharged, as an insolvent debtor, and that was conclusive upon all persons; (2) That, by the notice given to Williams in the case of Miller, and filed therein, the discharge of Floyd in that case exempted his body from further imprisonment by Williams; (3) That there could be no judgment against Floyd for the debt and costs, as the appearance bond had been discharged by his surrender, and the only judgment, that could be entered against him was that he should stand imprisoned; and, (4) That the discharge, which was entered in the case of Williams at the proceeding term, was executed and could not be recalled nor the debtor be further rendered liable in this proceeding.
But the court granted the plaintiff's motion and gave judgment against Floyd, upon his default in not appearing, for the plaintiff's debt and the costs incurred in the premises in the county and Superior Courts.
The plaintiff's counsel then further moved for a judgment on the appeal bond against Floyd and his sureties, to be discharged by the payment of the said debt and costs. That motion, the sureties for the appeal opposed, upon the same grounds urged before for Floyd, and also because they had (as was established) since the preceding term offered to surrender Floyd to the sheriff, and the sheriff refused to receive him as a prisoner.
But the court granted this motion also, and from the judgments Floyd and his sureties appealed. It seems to this Court that the judgment of the Superior Court is right.
In the first place, as between Williams and Floyd, the Court can take no notice of the entry of the discharge of the latter, which was stricken out; for by that act it is the same as if the entry had never been made. It was exclusively for the court which made the entry to allow it to remain or to set it aside. The debtor is no worse off now, that it is set aside, than he would have been if it had never been made, and, therefore, he has not been injured thereby. This Court, therefore, is to regard the question presented to us, not in the light that Floyd was discharged by the entering of the order to that effect in the suit by Williams, but in this: whether what had been done in Miller's suit was in law and fact a discharge from imprisonment at the suit of Williams, so that no judgment could be had therein, on which Floyd's body could be further detained, or again imprisoned. If the answer be in the affirmative, then the judgments moved for by the plaintiff ought not to have been given, whether the discharge had been previously entered or not, or was properly expunged or not.
It appears to us that it is not difficult to understand our (657) legislation upon this subject, and that it is plainly the intention of the Legislature that in every case in which the debtor does not entitle himself to his discharge by taking the oath of insolvency, there is to be a judgment against him for the debt and all the costs incurred in the original suit and under the ca. sa. upon which judgment the debtor may be imprisoned; if rendered upon his default in not appearing, he may be imprisoned by process of execution, on which he shall not be entitled to the benefit of the act of 1822; and, if rendered when the debtor is in court, for fraud found against him, or for failing to give notice, or for refusing to be examined, by the judgment of the court that he be imprisoned — which is, necessarily, in execution for the debts and costs — until he make a full disclosure, give the necessary notice to the creditor, and take the oath of insolvency. It is clear that it must be so. The act, Rev. Stat., ch. 58, sec. 7, says expressly that in case the debtor shall fail to appear judgment shall be rendered instanter
upon the bond given to the sheriff, against the principal and his sureties, to be discharged upon the payment of the debt and costs. But it is said that such a judgment cannot be rendered in this case because that bond was never forfeited, but saved by the surrender and imprisoning of the principal. Whether the sureties could surrender the principal after the court "to which the capias ad satisfaciendum is returnable," may, possibly, be a question upon sec. 9 of the act, but we assume that they may; still, if the debtor and creditor make up an issue and incur costs, and the principal is surrendered and imprisoned *457
a day or a week and then escapes, is the creditor to be put to a newca. sa. upon his original judgment as at common law, and lose all those costs? Surely not. For if he were put to a new ca. sa. he would not only lose his costs in the first proceeding, but the debtor might again avoid going into close prison, by repeating the process of giving bond to take the benefit of the act; whereas the act is precise, that where the debtor fails to appear and a judgment is rendered in court therefor, he shall not be entitled to the benefit of the act. When the act uses the language, then, that there (658) shall be judgment on the bond against the principal and his sureties, to be discharged by the payment of the debt and costs, it merely has a view to the responsibility of the sureties, as, probably, the best security for the creditor, and they can be reached only upon their bond, because, by that only have they made themselves liable. But there is no necessity for the bond to get at the principal debtor; for he was chargeable upon the original judgment for the debt and costs, and upon the proceedings in that court for the costs thereof; and, upon them, there must be judgment there for the debt and both sets of costs against the principal, as the only means of making the debtor liable for the costs and of subjecting him to the actual imprisonment, which, in such case, is imposed on him. This meets the case before us, which is one in which the debtor failed to appear personally, when lawfully demanded; which he is bound to do in the county and Superior Court. Mooring v. James,
It would also be the same thing if the debtor had appeared and had refused to be examined, or fraud had been found against him, or he had refused to take the oath of insolvency; in all those cases there must be a judgment for the costs, and, consequently, for the debt also, and then a further judgment or order that the debtor be imprisoned, as in execution, until he should duly discharge himself, as an insolvent debtor, by a full surrender of his property, due notice to the creditor and taking the oath. That is the direct effect of sections 10 and 11 of the (659) act; and the correctness of the position is rendered still more *458 plain by the provision in section 19 that any debtor against whom an issue is found, or who for any cause is adjudged to be imprisoned until, etc., shall not be entitled to the benefit of prison bounds, but shall remain in close prison, until discharged by being permitted to take the oath of insolvency. For what is he to be adjudged to be imprisoned? Not for a contempt of court, for then there would be no security for the creditor for his debt, in case of an escape, since the creditor could not charge him in custody by another ca. sa. for the same debt. He is therefore committed in execution, and, necessarily, he is in execution upon the judgment then rendered by the court, for both the debt and the costs. When that judgment is rendered by the court to which the process was returnable the plaintiff can have nothing more; for the debtor's appearance discharged his sureties to the sheriff, and no one else but the debtor is bound for the debt or costs. But from that judgment the debtor appeals, which he may do, "as in other cases," his sureties for the appeal bind themselves that he will prosecute his appeal with effect, or that he will perform the judgment of the court, and the act of 1785 directs that where judgment is rendered against the appellant judgment may also be rendered instanter against the sureties for the appeal, for the sums adjudged against the appellant himself. Of course, then, if in the Superior Court the issue be found against the debtor, or for any cause judgment be then rendered against him for the debt and costs (though he be adjudged to be imprisoned thereon, until, etc.), his sureties for the appeal are liable for the payment of the money for which such judgment is given, and judgment may be rendered against them summarily, as in other cases.
In treating the subject hitherto, the case has been considered as if the proceeding by Williams were the only one against Floyd; for we (660) have been endeavoring to ascertain what is the proper judgment against the debtor himself, supposing him not to be duly discharged, and then what judgment is to be grounded thereon against the sureties for the appeal. It remains, however, to be seen whether this debtor had been fully discharged.
The first ground on which his discharge is rested is, that, in point of fact, he had been admitted to take the oath of insolvency by a court of competent jurisdiction in Miller's suit, and that is conclusive upon all creditors. This position is founded on Burton v. Dickens,
But another ground is taken on which it is insisted that Floyd was discharged from arrest at the suit of Williams, which is that Williams had received notice of his application in Miller's case, and therefore was bound by the decision in it. This is founded on the provision, already quoted from sec. 10, for notice to all the creditors, and that those who receive notice shall not imprison the debtor again; and on that contained in sec. 20, which allows any creditor, who may have been notified, to suggest fraud and join in the issues, but prescribes that the debtor shall not be compelled to answer the suggestions of fraud but in one case. The cases to which those provisions apply may be either those in which there is but one arresting creditor, and where, consequently, there can be issues but in one case, or those in which several creditors arrest the debtor, upon distinct judgments in the same or in different courts. Now, in cases of the latter kind, "the debtor shall not be compelled to answer the suggestions of fraud but in one case," that he may not be harassed by attending at different places to (661) establish the same facts, or unnecessarily incur the costs of many issues, when one may serve the purpose of all. But this is manifestly for the ease of the debtor, and if he will voluntarily answer the suggestions of fraud made in several suits, it is his own folly, and he must abide by the result in each suit, as between him and the creditor in that suit. The contrary construction would lead to the grossest frauds on the creditors. For if the debtor can join issue in half a dozen different cases, pending in as many courts in distant places, and then insist that all the creditors are concluded by the verdict in any one of those cases, he would have his creditors going all over the State to attend on trials with him, or by concert with a friend in one suit might obtain his discharge as to all the creditors without any real trial.
The debtor might, therefore, in this case, have required the creditors to put all their suggestions into one, or to come to trial upon all at once, and as in one case, and, on suggestion of his wish, the court in which any one of the cases was pending would have taken order to have the act observed. But he would not insist on that right, but, it may be, for purposes of his own, took separate issues in the several suits; and, therefore, he has no right to treat a particular creditor as a party to any issue but that joined in his own suit. For, suppose Miller to have suggested the concealment of one article of property, and Williams another, upon which it might be the interest of Floyd not to combine the trial, as he might think he could establish his schedule in one particular so as to get a discharge from one creditor, when he might doubt as to *460 the other, and in case of failure he might be able to pay the one debt when he could not pay both, In fine, the act gives a privilege to the debtor in this respect, and it is in his power to renounce it, and he did so here.
It is unnecessary that we should speculate as to what would have been the effect of the debtor's appearing in court when demanded, although he had escaped and been at large after the preceding (662) term. It is sufficient that he was not in court when he ought to have been to found a judgment on his default for the debts and costs, for which the sureties for the appeal are liable. Their offer to surrender the principal to the sheriff cannot relieve them, for they are bound for his performance of the judgment and cannot discharge themselves by a surrender. If the debtor's reappearance could have availed him or them they should have prevailed on him to come to court instead of going to the sheriff. However, that is a matter not before us, and on which we do not pretend to have formed an opinion.
PER CURIAM. Affirmed.
Cited: Wright v. Roberts,
(663)
