Ballard v. Waller, 52 N.C. 84, 7 Jones 84 (1859)

Dec. 1859 · Supreme Court of North Carolina

52 N.C. 84, 7 Jones 84

JOSEPH L. BALLARD v. FELIX WALLER.

A chose in action cannot be included by commissioners in their allotment of an insolvent debtor’s provision, under the statute; Rev. Code, ch. 45, section 89.

It cannot be held a fraud for an insolvent debtor to omit to include in his schedule, property which has been assigned to him by commissioners under the statute; Rev. Code, ch. 45, sec. 89, although the property be such as cannot be legally assigned.

ifhe proper way to review the action of commissioners upon a question of an improper allotment under the statute, Rev. Code, ch. 45, sec. 89, is by a recordari in the nature of a writ of false judgment.

This is an appeal from the judgment of'the Superior Court for Pitt County, at a Special Term, July, 1859, Manky, J., presiding.

The facts of the case are as follows: Ballard, the plaintiff, hi this action, obtained a judgment against the defendant Waller, befoie a justice for $39.19, principal debt and interest, and forty cents costs. Upon this judgment, a m. sa. issued, aud the defendant gave bond for his appearance at the next term of the Court of Pleas and Quarter Sessions for Pitt county, with the intent to take the oath for the relief of insolvent debtors. The defendant,4 Waller, filed his schedule, whereupon the plaintiff suggested a fraud in the concealment of a certain judgment in favor of the defendant against one Baily, for $11.00, or thereabouts, which was still unsatisfied. IJpon this, an issue of fraud was made up, and the jury found for the defendant, and, from the judgment of the Court, upon this finding, the plaintiff appealed to the Superior Court. In that court the defendant offered in evidence a report of the freeholders appointed to allot his provision under the statute; Eev. Code, cli. 15, see. 89, from which it appeared that the judgment in question, had been assigned to him as part of such provision. This report was filed in the clerk’s office, and it was shown that the commissioners were appointed by the proper authority. The plaintiff contended that the assignment did not pass the said judgment, so as to exempt it front Waller’s creditors; that dioses in action were not within the provisions of the statute, on that subject, and that the assignment having been made, after the issuing of the ca. sa., was ineffectual against it.

The Court was of a contrary opinion, and so instructed the jury. The jury found for the defendant, who was thereupon adjudged entitled to take the oath of insolvent debtors. From which judgment the plaintiff appealed to this Court.

Rodman, for the plaintiff.

Warren, for the defendant.

Pearson, C. J".

This Court is of opinion, that under the provisions of the statute, Eev. Code, ch. 15, see. 89, the freeholders appointed to lay off and assign the property to which a debtor may be entitled, are not authorised to include a chose in action, a judgment, for instance, due to the debtor.-

“In addition to the foregoing articles, there shall be exempt from execution the following property: one cow and calf, ten bushels of corn, fifty pounds of bacon, farming tools for one to labor, one bed, &e. for every two members of the family, and such other property as the freeholders may deem necessary for the comfort and support of the debtor’s family. Such other property not to exceed in value fifty dollars at cash valuation.”

These' words all refer expressly to articles of property, which are liable to be sold under execution, and can in no sense be-made to include a chose in action. The enumeration of particular articles, one cow and calf, &$.. concluding with the words, “ and such other property,” by an established rule of construction, restricts it to other property of the Wee hind.

In Dean v. King, 13 Ired. Rep. 20, it is said : “The great purpose of these statutes, is to prevent a house-keeper and his family from being deprived of the immediate means of subsistence, by exempting from execution such tilings as the Legislature deemed requisite to the supply of the pressing wants of food, clothing and such bedding as would enable them to-subsist together.” After some hesitation, the Court thought “a mare might pass as of a like kind with “the farming tools necessary for one laborer” — a judgment fo-r $11, is not of like kind with any thing enumerated, and differs from all in this : it is not liable to bo sold under execution.

This construction is confirmed by the words of the oath of si debtor- taken under a ea. sa., “except what is contained in my schedule, and what is exempt by law from- sale under execution;” Rev. Code, ch. 59, sec. 3.

It is also confirmed- by contrasting the words with those in reference to the widow’s allowance, Rev. Code, ch. 118, see. 21. “Tif there be no crop, stock or provisions on hand, or not sufficient, the commissioners, besides the aforesaid specific articles, may allot any articles of personal property, (slaves excepted;) and any debt or debts known to be due to the intestate; and such allotment shall vest in the widow a right to collect in an action in her own name, the debts allotted to her.” However liberally disposed, the Courts may be towards poor debtors, there is no authority for adding these words to the statute, providing an allowance for them.-

This Court, however, concurs in the conclusion that “ the. jury ought to find the issue in favor of the defendant,” on the ground that it involved the allegation of a fraudulent concealmmt of the debt of $11, evidenced by the judgment, and all imputation of fraud in regard to it, was rebutted by the fact that it was included in the allotment made by the freeholders, and filed among the records of the County Court office, as required by the statute. It would be strange if an error, committed by the freeholders, in reference to the construction of the statute, should be allowed to result in a conviction of the debtor of a fraud, and thereby subject him to be imprisoned “ until he made a full and fair disclosure,” which, in the Superior Court, would be an imprisonment without bail or mainprise, for the term of six months.

The legality of the allotment, in a question about articles of property may be tried in an action of trover, for instance, as in Dean v. King, supra, but in order to review the action of the freeholders, in a question, like the present, we suppose the creditor should obtain a recordwri in the nature of a writ of false judgment, which would present the matter of law; for it is not necessary that the allotment should be confirmed by the County Court; so, there is no appeal, and errors of any inferior tribunal are corrected by the writ referred to.

Per Curiam,

Judgment affirmed. '