Mann v. McVay, 8 N.C. 226, 1 Hawks 226 (1820)

Dec. 1820 · Supreme Court of North Carolina

8 N.C. 226, 1 Hawks 226

Mann v. McVay.

From Person.

The certificate of the justice of the peace required by the “ act to punish persons for removing debtors out of one county to another,” is intended solely for the benefit of tile, person who removes the debtor: it is only a mode of proof that the debtor has duly advertised :

Held, therefore, that it may be obtained at any time, either before or after the removal: and it may be dispensed with 'altogether, if the party can make the same proof by other testimony.

This was an action on the case, brought under the act of 1796, for the removal of Morgan, a debtor to the Plaintiff, from the county of Person to the county of Orange. The removal was on the 23d day of December, in the evening. On the 13th day of December, in the morning, Morgan advertised his intention to remove, at a store and at a tavern in Person, which were both public places, and also at the dwelling-house of J. B, one of the justices of the peace for that county. B. lived on the main road leading through the county, and gave private entertainment to travellers for compensation. The advertisement that was set up at B’s was handed to him by-Morgan himself, who remarked that he was indebted, and intended to remove, and was unwilling to subject any other person to the payment of his debts, and requested B. to set it up where he thought proper upon liis-premises, and to do whatever was necessary under the act of Assembly to enable any person to remove him safely. B. then set up the advertisement at his own. door, and told Morgan that was all that was necessary ; and he did not then give him the certificate required by the act. The Plaintiff lived five or six miles from Morgan and from B.; but he knew óf the removal, and took no steps to prevent it, or to have process served upon Morgan. After the bringing of this suit, the justice of the peace gave a certificate of these facts, which was-read in evidence upon the trial: and the Defendant also proved them by the testimony of B. and other witnesses given in open Court. On the part of the Plaintiff, the Court was moved to instruct the Jury, that the Plaintiff was entitled to recover, notwithstanding the certificate and the testimony of the witnesses — because the certificate was not given before the removal, and because the facts could be proved by such a certificate only: which instruction the Court refused to give. The counsel for the Plaintiff then moved the Court to instruct the Jury that he was entitled to recover, because the- house of B. was not a public place : which instruction the Court also refused to give. The Jury found a verdict for the Defendant, who liad judgment: and the Plaintiff appealed to this Court, because the Court refused to give the instructions as prayed for. The judgment was entered in the Court below on the second Monday of September, A. D. 1820, and the appeal was, of course, taken to the present term of this Court.

The case was not argued on the part of the appellant.

Muffin, for the appellee.

The utmost the Plaintiff can ask is, that the act should be considered remedial. If it be, then it is to be construed so as to advance the remedy •, but not so as to work injustice.. It was not designed to tie the poor to one spot, and prevent removals altogether, but only such as might be “ to the prejudice of creditors” — of that cha; actor are those only which are secret. Such are they in point of fact, and such are they deemed in the act of Assembly; for they are allowed, after advertisement at three public places in the county. The object of the advertisements is to give notice to the creditors ; and the three prescribed are deemed sufficient notice to all the creditors. If, therefore, express notice, be brought home to the particular creditor suing, it is enough; because the scope of the act is, as to him, satis-; lied. If the creditor be actually assenting to the debtor’s removal without advertising, he cannot recover; for that would be to pervert a law intended to promote justice into an instrument of wrong. The same reason applies to a case where he has full notice, as here, and does not use any means to enforce payment of his debt, or arrest the body of the debtor. On that ground, therefore, the Defendant was entitled to a verdict.

While, on the one hand, the advertisements are required for tiie benefit of the creditor, in order that lie may get notice, and have an opportunity of securing his debt $ so, on the other, nothing will be held to be intended for his benefit but what will tend to give him notice. The certificate cannot at all contribute to that end : it is not required to be made public, or in any way communicated to the creditor j hence it follows, that it must have been intended solely for the benefit of the debtor himself, and of the person who might remove him ; that the former might, by the es&ibition of it, obtain the necessary aid for his removal, because it would shew that he had complied in every respect with the provisions of the law, in giving notice^ and enable him at the same time to put into the hands of the person removing him conclusive proof thereof, in a convenient, permanent, and written form. For the relief of the debtor, therefore, the certificate is given : hence it is to be regarded, not as a license to remove, but simply as evidence of his compliance with the provisions of the act.- if, however, another chooses, upon his assurance that he has given due notice, to remove him before he has obtained his certificate, he will , not be precluded from getting the certificate afterwards; for, like all other proofs, it will be sufficient to have it on the trial. Nor docs the act exclude other proof j and, if the parties he willing to run the risk of the memories and lives of witnesses, there is nothing in the statute more than there is in sound reason, to give to the certificate of the magistrate a preference above the higher and more solemn evidence to be derived from the testimony of that same magistrate and other witnesses, given under the sanction of an oath in open Court. Whether the certificate was or was not, therefore, sufficient for the Defendant in this case, the testimony was j and the judgment ought to be affirmed, so far as regards the first point.

The act expressly makes the house of the justice a public place quo ad hoc, whether it be so in point of fact, oí- not. The words are “ it shall be his duty to advertise his intention of removal in at least three public places of the county, one of which advertisements,” i. e. one of which three advertisements “ shall be set up at the door of the justice or such other jiublic place on his premises, as ho may direct.”

But the true character of this act is, that of a penal statute, it is entitled “ an act to punish persons for removing debtors.” it has no regard to the quo animo of the Defendant; and it subjects him to the payment of the sum due, not in satisfaction of the original debt, for which he could then have his remedy over against the original debtor, but as a mere penalty. If this be correct, it is immaterial, whether the opinion of the Court be light or not, because since the judgment below, the Legislature by the act passed at the session of November, 1820, has repealed the act of 1796, upon which this action is brought.: The last act has no clause, saving previous rights or pending actions. Consequently the jiidg-meni must be affirmed : since, if the cause be sent back, there is no law now in force, whereby thePlaintiff could have judgment. This rule is applied not only to cases pending in the Court where they were originally brought, but also to cases pending in an appellate Cdurt, where the repealing statute was passed • after the judgment in the Court below, and before the decision in the Court of Errors.—United States v. Passmore ^* —Rex v. Justices of London ^†—Hollinsworth v. Virginia ^‡ —United States v. Schooner Peggy ^§—Yeaton v. United States.^||

* 4 Dal. Rep. 372.

† 3 Bur. 1456. S. C. 1 Wm. Bl. Rep. 451, called Miller’s case.

‡ 3 Dal. 378,

§ 1 Cranch, 103.

|| 5 Crancli. 281

Tayuor, Chief-Justice,

delivered the opinion of the Court:

After repeating thé words of the statute, he proceeded to state, that the certificate is intended exclusively for the benefit of the Defendant, to enable him to ascertain whether a person, whom he is about to remove, has advertised according to law. If he can assure himself of that fact, and chuses to run the risk of proving it by other evidence, he may do so j and it is of no importance at what time the certificate issues, or whether it ever issues. If he can satisfy the Jury at the trial, that the party did advertise according to law, the substantial provisions of the act will be complied with. It seems also to be the clear intent of the act, that the justice’s house shall be deemed a public place, within the object of the law; and any other public place on the premises of the justice, which he may direct, must equally be considered so, because the debtor could exercise no control over the justice who was, to a certain degree, in the performance of a judicial act. The charge of the Court appears to have been perfectly correct.

. Nothing was said upon the last point taken in the argument : but

By the WHOiE Court, the judgment was affirmed.