McLeod v. Kirkham, 33 N.C. 509, 11 Ired. 509 (1850)

Dec. 1850 · Supreme Court of North Carolina

33 N.C. 509, 11 Ired. 509

JOHN McLEOD vs. J. H. KIRKHAM.

In the case of a proceeding under the insolvent debtor’s law, the Court has authority to permit the schedule to be amended, so as to make more certain the description of the defendant’s interest in matters there set forth, at any time before the oath is administered; and if the plaintiff is surprised, it is ground for a continuance.

It is sufficient to file the evidence of the debts, set ontinthe schedule, which are in the possession and control of the defendant, at any time before the oath is administered.

It being a matter of public notoriety, that proclamation money is wholly worthless, it is not necessary to state in the schedule the amount thereof with nicety, or to file the same.

Appeal from the Superior Court qf Law of Montgomery County, at the Fall Term 1849, his Honor Judge BATKMfe-presiding.

TMS was an application to be discharged under the insolvent debtor’s act.

The defendant was arrested under a writ of ca. sa , returnable to this term of the Superior Court of Law for the County of Montgomery, p.nd gave bond for bis appearance to tafee the benefit of the act for the relief of insolvent debtors. He accordingly issued a notice, which was regularly served upon the plaintiff, more than ten days before fhe first day of this term. The plaintiff objected, that the notice was insufficient, but the Court overruled the objection. The defendant filed \vith the Clerk of the Court, ten days before the first day of this term, his schedule, but did not file with the said Clerk the notes and other papers, therein referred to, until the second day of this term, on which day the plaintiff filed the exceptions, The Court decided, that no further description of the claims to property in England or Scotland, or of the amount of the proclamation money, , was necessary, but that the description of the defendant’s interest in his wife’s land in the County of Halifax, and his interest in the pension claims was not sufficiently specific, and, on his motion, allowed him to amend his schedule in that particular. The amendment having been made to the schedule, th,e defendant, by his counsel, moved the Court, that- he Sfiopld be allowed to swear tp the same, and thereupon to be discharged. The plaintiff opposed the motion, because :

1st. . The no.tice \yas insufficient.

■ 2nd. The,notes, accounts, proclamation money, &c , were not filed with the schedule ten days before the first day of the Term-

3rd. The amount of the proclamation money was not sufficiently specified.

4th;. The plaintiff’s interest in the English claim was not Sufficiently set forth.

5th. The Court allowed the defendant to amend liis schedule without any authority for so doing; and insisted, that he could not swear to his schedule at the term, at which the amendment is made.

6th. The defendant has not filed at all the notes and judgments against Medlin, Martindale and Campion, nor the constable’s receipt for the same. The plaintiff further objects, that neither the notes, or judgments against Med-lin, Martindale and Campion, nor the constable’s receipt for the same, are filed at all, and, for that reason, the defendant could not take the oath.

The Court overruled all these objections, and ordered, that the defendant be allowed to swear to his schedule, and thereupon to be discharged. From which order, the plaintiff prayed an appeal to the Supreme Court, which was granted.

Kelly, for the plaintiff.

Morehead, for the defendant.

PearsoN, J.

None of the objections to the right of the defendant, to be discharged under the insolvent law, are tenable, and there is no error.

1st. The notice, a copy of which and of the schedule was served on the plaintiff, gave full information “of the intention of the defendant to avail himself of the benefit of the act.”

2nd. We think the Court had authority to permit the schedule to be amended, so as to remove the objection for the want of certainty in the description of the defendant’s interest in several-matters there set forth, at any time before the oath was administered, and, if the plaintiff was in any way surprised, it was ground for a motion to continue.

3rd. It was sufficient to file the evidence of the debts set out in the schedule, which were in the possession and control of the defendant, at any time before the oath was administered. There is no reason for requiring them to be filed at the same time with the schedule. It may be they are not in the defendant’s possession, and every useful purpose is answered, if they are delivered at the time the discharge is moved for.

4th. The defendant assigns a sufficient reason for not filing the notes and judgments against Medlin, Martindale and Campion. The schedule set out the fact, that the papers are in the hands of one Putney, a constable in the City of Raleigh. They are thus put within the control of the officer, in whom the title is vested by force of the statute, for the benefit of the creditors. There is no evidence that the defendant had a constable’s receipt for those papers.

5th and 6th. It is a matter of public notoriety that proclamation money is wholly worthless and of no value, and the objection because the amount thereof is not stated with precision, and because the same was notified, cannot be sustained.

Pee Curiam. Judgment affirmed.