Gardiner v. Executor of Sherrod, 9 N.C. 173, 2 Hawks 173 (1822)

Dec. 1822 · Supreme Court of North Carolina

9 N.C. 173, 2 Hawks 173

Gardiner v. Executor of Sherrod.

From Martin.

The single act of assisting a debtor to remove, without stating more, is not suPicicnt to render a person liable for a debt cine by the person removed, although that assistance may have been given with a fraudulent intent; because it is a case in which a Plaintiff cannot qualify his injury, i.' e. its nature and extent cannot be stated, for it is quite uncertain whether he has lost the whole or any part of his debt, and it is necessary for a Plaintiff to state iu his declaration, not only that he has sustained damage, but also /* he has been injured.

This action was originally brought against Befen-dant’s testator, after the death of whom the present Defendant was regularly made a warty. The declaration contained two counts, in the first of which. Plaintiff set forth, that one .Robert Sherrod, on the Idfk day of Qeto-her, 1817, at the county of Northampton, became indebted to the Plaiuüfí in the sum of $200, to- be paid in two days after date, and secured by the writing- obligatory y10 gaj¿ Robert,- dated of the said day and year ,• and the said Robert and the Plaintiif both being- on the delivery of the writing- obligatory, and when it became due residents of the county of Northampton aforesaid ; that the said Robert^afterwards, to-wit, on the 20th of October, 1819, absconded from the county aforesaid, and from North-Carolina, the said sum of money and interest thereon being- then due and unpaid; and the said John (the Defendant) well knowing- the premises, and intending to defraud the Plaintiff of the said sum of money, and the interest due thereon, did, wrongfully, injuriously, and deceitfully, and with an intent to defraud the Plaintiff of this said debt and interest thereon, and to hinder, delay, and defraud him of his actions for the recovery of the same, on the day and year last mentioned, aid and assist the said Robert to abscond from the said county and state aforesaid, without the said sum of money and interest due and in arrears being paid, whereby the said Plaintiff has been defrauded of bis debt, interest, and actions, to his damage, &e. and therefore, &c.

The second count was framed on the act of 1796, which enacts, that if any person shall remove, or knowingly assist to remove any debtor out of the county in which "he shall have resided, for the space of six months or more, who shall not have advertised his intention of removal, and obtained a certificate of his having so advertised, then such person so removing or assisting to remove, shall be liable for all the debts of the person removed, in the county from which he removed. The act further provides, that the said debts may be recovered by an action on the case, to be brought within twelve months.

By an act of the Legislature passéd in the year 1820, (subsequently to the commencement of this suit) the act of 1796 was repealed, and it was enacted, that if any person or persons shall remov e, or shall aid and assist in removing any debtor or debtors out of any county in winch be. she, or they shall have resided for the space of six months or more, with an intent, by such removing, aiding or assisting, to delay, hinder or defraud the creditors of such debtor or debtors, or any of them, then the person so removing, aiding or assisting; shall he liable to pay all debts which the removed person justly owed in the comity from which he removed, tobe recovered by an actinia on the case, brought within three years from the. time of the removal.

On the trial below, the FlaiiaiiiT proved that Robert Sherrod was indebted to him in the sum named in the first count of the declaration ; that at the time the obli-gaiioU of said Robert became payable, he had concealed himself for the purpose of avoiding his creditors j that John Sherrod acknowledged to several witnesses that he fad fitted up a horse and cart to convey away Robert Sherrod’s family fr<*m the State, and that he had furnished said Robert with money to enable him to remove ; that he executed u conveyance of the horse and cart and certain negroes to the children of Robert Sher-rod, previous to the departure of Robert’s family ; that the cart, together with the family of Robert and the ne-groes conveyed, set out on their journey from the house of Robert in the night; that John Sherrod expressed apprehensions from having been seen with the cart at the time it started ; that on one of the witnesses, who drew the conveyance before alluded to, and to whom he ac know lodged his having furnished Robert with money, and the horse and cart, he enjoined secrecy, saying that Robert was in debt and lying concealed, and he did not wish liis creditors to know it. it was also proved that Robert did remove out of the State, and had not returned*’

The presiding Judge declined giving any opinion on the second count, hut charged the Jury that if they thought the first count was proved 10 them, that he way of opinion that the law would support a verdict rendered thereon ; that the quantum of damages was for them, noi: for himj that they might, if they thought proper, give the debt and interest. The Jury found a verdict for the Plaintiff on the first count. A rule to shew cause was obtained by Defendant and afterwards discharged uy the Court, and from the. judgment rendered according to the verdict, Defendant appealed to this Court.

The Jlllorn&ij-ümcral, Brew, for the Plaintiff,

to chow that this action might be maintained at Common f.aw, cited 2 JFils. 2.94 — -Bacon’s M. tit.ee action on the cnee” F.

Hall, Judge.

I think the first count, on which the Jury have rendered a verdict, cannot be sustained. The. Plaintiff states that, the Defendant’s testator fraudulently &c. aided and assisted the Plaintiff’s debtor to abscond. This lie might have done, hut it is not shewn that it was on that'account that the debt was lost; it might have been that the debtor was insolvent and would not have paid the debt if he- had remained. The single act of assisting the debtor to remove, without stating more, is not sufficient to render a person liable for a debt due by the person removed, although that assistance may have been given with a fraudulent intent.

It must be remembered that this is a count at Common Law. Indeed, if this action could be supported it would have been unnecessary to have passed the act of 1820, cfa. 1008. That act subjects any person to the payment of the debts of any other person whom they shall remove, provided they shall remove them with an intention of defrauding their creditors. I therefore, think She action cannot be supported upon the count at Common Law on which a verdict lias been found for the Plaintiff, and that the rule for a new trial should be made absolute.

Henderson, Judge.

It is necessary for a Plaintiff io stale in his declaration, not only that' he lias sustained a damage, but also how he has been injured ; for u. is an huemice of law and not of fact, that the acts charged amount in law to a legal injury, or such a one as the law redresses. Admitting all the facts charged in the ° 1 •first count to be truc, I think they do not amount to a legal injury. If is not stated how a damage arose to the Plaintiff from the acts charged on the Defendant, it is net alleged that the Defendant had any property or other means of satisfying the Plaintiff’s debt. And if the avoidance of an arrest at the suit of the Plaintiff be a legal injury non constat, that the Plaintiff would have arrested him, for it is not shewn that he was prevented from so doing, for it does appear that he had even taken out process against him. The case which goes farthest upon this subject is to he found in Carlhew. in that it is stated that the Plaintiff had taken out process against the goods of his debtor, and that the Defendant, with a design to injure the Plaintiff, had eloigned the goods to distant parts, whereby the Plaintiff lost hh opportunity of having them taken and thereby lost, his debt. But that case is very distinguishable, from the present $ for in that, an arrest of the goods afforded a means of satisfaction, and the wrongful act of the Defendant is charged as the cause of its prevention, the Plaintiff having taken out process to that end. The wrongful act of the Defendant was intimately connected with the Plaintiff’s loss, and is stated to be the cause thereof j which deduction may well be called, I think, a legal one. But I think no legal injur) can be deduced from the, facts stated in this case. They all well may have happened, and yet may have afforded no actual impediment to the Plain tiff’s claim. Besides, in this case the Plaintiff cannot qualify his injury, that is, its nature and extent cannot, he stated, for it is quite uncertain whether he has lost the whole or any part of his debí. The Defendant may return within a short time, or he may continue long absent, or lie may never return, or he may be entirely insolvent. so that a suit against him would produce only trouble ami expense. In fact, the Plaintiff has given no st’an(lard whereby his injury can be. measured. I tliere-fore think that at. Common Law the Plaintiff cannot re-covep> Bijt jf lie. had declared upon the statute, I mean that of 1796, 1 sun rather inclined to think that he could, have recovered, notwiihr,landing its partial repeal, by the act of 1820. I call it partial, for some of its features are retained by the repealing act, for that declares that he who acts as this Defendant is alleged to have acted, shall be liable to pay the debts of the debtor. And it has been decided in this Court that a repeal of a penal law releases all penalties, even those given to the party aggrieved, although actions may be pending for them at the time of the repeal, upon the ground that there is no longer a legislative, will to inflict the penalty, and that it is not an interference with the rights of individuals acquired under a law whilst it was in force, but the revocation of a mere, gratuity which the Legislature have thought proper to confer upon an informer or the party aggrieved, and which it can revoke at pleasure. In this case we have no such legislative declaration, for at no time since the passage of the act of 1796 down to the present time, has the Legislature signified its intention that persons guilty of acts such as charged in this case should be exempt from the penalties of that act; for that feature, of the act which charges this Defendant was retained in the repealing act, and was sanctioned unojlatu with it, there was not a moment of time between them ; but the Court is prevented from taking this view of the case, the act not being declared on. See the case of Scroter v. Harrington, decided in this Court, and authorities there cited. For the reasons given in the foregoing part of this opinion, X think a new trial should be granted.

Taylor, Chief-Justice, concurred.