Moore v. Rogers, 48 N.C. 90, 3 Jones 90 (1855)

Dec. 1855 · Supreme Court of North Carolina

48 N.C. 90, 3 Jones 90

WILLIS P. MOORE vs. CALVIN J. AND BENJAMIN ROGERS.

Where a party persuades a debtor, who is temporarily absent from the county of his residence, not to go back into that county, but to go to distant parts, and promises, if he will do so, to send his property from his residence to him, and does afterwards send such property to him, and aids hita with money to abscond from where he then is, and goes part of the way with him, for the purpose of defrauding his creditors, he is liable under the Statute. Rey. Code, ch. 50, sec. 14.

Action on the case for fraudulently removing a, debtor out of the county; tried before his Honor, Judge Saunders, at a Special Term of Robeson Superior Court, December, 1855.

Die plaintiff declared on two counts. IFwst, under tlie Statute ; secondly, at common law; for fraudulently removing one Daniel W. Rogers from tlie county of Robeson.

Die plaintiff proved that he was a creditor of D. W. Rogers by a bond, due on 1st of October, 1853 ; also, that plaintiff and D. W. Rogers, both resided in tlie county of Robeson for several years previously to February, 1854—that in that month, the said D. W. Rogers went to Wilmington, on business, and was there arrested and committed to prison, under a criminal charge;—that the defendant, Benjamin Rogers, procured the witness, (William A. Rogers,) as his agent, to go to Wilmington and obtain the release of his son, by giving bail for his appearance at court; and promised the witness to indemnify him for becoming his bail. The witness gave a bond for the appearance of the said D. W. Rogers, to answer to the criminal charge, which was accepted for that purpose; but the said D. W. Rogers was still detained in prison under writs for debt, served upon him while in jail. Diis witness further proved, that the defendant, Calvin J. Rogers, stated to him, that he went to Wilmington a short time after the bond had been given, and having settled and compromised the debts for which he was held in custody, procured his discharge ; that the two then got into the cars of the Wilmington and Manchester Rail-Road, at night, and travelled from Wilmington to Whitesville in the county of Columbus; that the defendant, Calvin, said to him that Daniel had acted very foolishly, for that he wished to return to Lumberton—that he discovered, on the cars, that Daniel was without money, and he gave him a hundred or a hundred and twenty-five dollars; lie, Calvin, proceeded thence immediately to Lumberton, and endeavored to prevail on the witness to send the trunk of the debtor to some point on the rail road, which Avitness declined doing. The witness also stated, that shortly thereafter, at the instance and request of said Calvin, he sent his, Daniel’s, trunk to Raleigh, to his brother J. C. Rogers, who resided in Tennessee. Plaintiff offered to prove by this witness, further, that Calvin J. Rogers stated to him that all he had done in procuring the discharge, settling the debts, and aiding in the escape of the debtor, D. W. Rogers, was done as the agent, and by the direction of the defendant Benjamin Rogers. This evidence Avas objected to by the defendants’ counsel, and rejected. The plaintiff offered to prove by the witness further, that soon after D. W. Rogers left the country, the defendant, Calvin J. Rogers, as agent of defendant Benjamin, sold a negro in Robeson county, the property of defendant Benjamin, that had been in the possession of D. W. Rogers, and stated lie was his (Benjamin’s) general agent, but the court ruled that the declarations of the defendant Calvin, were inadmissible, to rove that he acted as the agent of the defendant Benjamin. The witness further proved, that Benjamin Rogers knew of the indebtedness of D. W. Rogers to Avitness, and at the time he procured the witness to go Wilmington, he assumed the payment of this debt; that at the time of the arrest of the said D. W. Rogers he had the control and management of an estate and property about him, in Robeson county, more than sufficient to pay plaintiff’s debt.

The defendants then put in evidence two deeds of trust, executed by D. W. Rogers, to secure certain debts, one in November, 1853, and the other in February, 1851, which included all the property OAvned by him in Robeson county. It Avas admitted that this property had all been sold by the trustee, and that there Avould probably be a small balance after the debts Avere paid.

The Court charged the jury “ that the plaintiff had failed to establish the liability of either of the defendants, under the first count in the declaration, and that the plaintiff Avas not entitled to recover against either of the defendants on the count on the Statute.” That if they believed the evidence, the plaintiff was entitled to recover nominal damages on the count at common law against the defendant Calvin J. Rogers, but was not entitled to recover anything against the defendant Benjamin. Plaintiff excepted to this charge.

The jury found a verdict against Calvin J. Rogers for sixpence, and in favor of the defendant Benjamin.

Judgment. Appeal by plaintiff.

Troy, for plaintiff.

Miller and Tog&rs, for defendant.

Pearson, J.

One aids or assists a debtor, who is temporarily absent, on business, from the county of his residence, to abscond, or go to parts unknown, for the purpose of defrauding his creditors: to this end, he supplies him with money to enable him to pay his travelling expenses, goes a part of the way with him, persuades him not to go back home, and to prevent the necessity of his doing so, promises that he will go there, and forward his property to him, which he accordingly does; is the party liable within the meaning of the statute ?

Ilis Honor thought he was not; putting his opinion on the ground that the statute only applied to cases where the debtor was in the county of his residence, at the time the aid and assistance were rendered. ~We do not concur. The words are, “ shall remove, or aid and assist in removing any debtor out of the county in which he resides.” The question turns upon the meaning of the word remove/ for it is clear, if the debtor had been at home when these matters occurred, or gone back before he started away, the case would have come within the meaning of the statute.

Did the debtor in common parlance, remove from the county of his residence, or from the county in which he happened to be when he started ? One removes when he changes his domicil. The word does not mean simply going out of, or leaving a county. In our case the debtor -went out of the county of Robeson to the county of New Hanover, but that did not amount to a removal. He removed when he changed his domicil. In common parlance, he ran away from the latter, but he removed from the former. Suppose he is asked in Texas, “ from what county of North Carolina did you remove?” His answer would be, “from Robeson.”

A consideration in support of this construction is suggested by another part of the statute ; actions are given to creditors to whom debts are owing in the county from which the debtor is so removed. Does this mean the creditors of the county in which the debtor happens to be when he takes his departure ? Certainly not. His being there is accidental. He may have no creditors there, and if he has, they have no particular right to complain if he goes out of the county. Whereas his creditors are apt to be in the county of his residence, and they have a special right to complain if he fraudulently changes his domicil. So, it is clear the object of the statute was to protect them. Now the injury to them is just as great if the debtor is enabled, by aid and assistance rendered to him, to take his departure from a county where he happened to bo, as if he had started from home. The case falling within the mischief intended to be remedied, comes within the meaning of the statute. Can any reason be suggested why the creditor shall lose his remedy, because of the accident that his debtor is absent from home when he forms the resolution to abscond ?

There is another view of the statute tending to support the construction we put on it. The words remove, or aid and assist in removing a debtor, in a narrow sense, might be restricted to th (¡.person of the debtor; - and it may be asked, how' can one assist in removing a debtor out of the county in which he resides, if he is already out of it ? That would be so, if the statute means carrying or assisting to carry the body of the debtor in a carriage, or the like. Rut it has never been doubted that the statute extended to his property. If the debtor rides his own horse, or walks, and the party carries his property for him, this is aiding in removing the debtor. So, if the party waits until the debtor crosses over the county line, and then, carries his property to him, it would make him liable under the statute. ¥e can see but little difference between these cases and ours, where the debtor, being temporarily out of the county, is aided by a supply of money to leave the country, and induced not to return to the county of his residence by a promise to forward his property to him, which is accordingly done.

The question of construction now under consideration, is new, but there are two cases involving a construction of other parts of the statute which shed some light. Godsy v. Bason, 8 Ire. Rep. 264: “ A person who helps a debtor by carrying him or his property a part of the way, in order to assist him in getting out of the county, becomes bound for his debts, although he did not carry the debtor or his property entirely out of the one county into another. The statute is remedial— for the prevention of frauds on creditors, and is entitled to a liberal interpretation. It would be a fraud on it to allow it to be evaded by carrying the debtor to the county line.” It would be equally a fraud on it, to allow it to be evaded by furnishing a debtor, who happens to be over the line, with money to enable him to run away, and then sending his property to him. Wiley v. McRee, 2 Jones’ Rep. 349: simply advising a debtor to run away, is not aiding or assisting, within the meaning of the statute. But the Court say, “ if the debtor’s object be to remove out of the county, and I let him have my horse, or carry him, or his family, or his property,,, some distance on the way to the county line, in my wagon, so as to make his removal the more easy, it is settled that this is giving aid and assistance. "We suppose that letting a debtor have money, whereby to enable him to hire a horse or a wagon for these purposes, would amount to the same thing.”

As his Honor, in respect to the first count, put the case upon a point of law, there being error, the plaintiff is entitled to a venire de novo as to both the defendants. It may be the jury would have found for the defendant Benjamin upon the facts, but the plaintiff Avas entitled to have the matter passed on by the jury, provided there Avas any competent or relevant evidence, and we think there was some evidence tending to connect him with the transaction. Its sufficiency was a question solely for the jury. Besides, we must assume the exceptions (i. e. the case sent) to have been made up in reference only to the point upon which the case turned.

It is unnecessary to say any thing in regard to the second count, except that it. may be doubted whether the injury was not too remote and the damages too uncertain and indefinite to sustain it. Gardiner v. Sherrod, 2 Hawk’s Rep. 173; March v. Wilson, Bus. Rep. 143 ; Booe v. Wilson, 1 Jones’ Rep. 182. Venire de novo.

Pee Curiam.

Judgment reversed.