Stephenson v. M'Intosh, 9 N.C. 427, 2 Hawks 427 (1823)

June 1823 · Supreme Court of North Carolina

9 N.C. 427, 2 Hawks 427

Stephenson v. M'Intosh and Murchison.

From Robeson.

The act of 1820, relative to the removal of debtors, must be considered a total repeal of tlie act of 1796 on the same subject, and therefore a Plaintiff who sued out his writ iii .February. 1821, and declared on the act of 1796, was nonsuited.

The Plaintiff in Ibis caso sued oat his writ on the 8üa day of February, 1821, and declared on the-act of 1796, and on the trial gave such evidence of a just debt due to him from Roderick M’lntcsh, and of the removal of the said Roderick from the county of Cumberland to the county of Moore, in October, 1820, and of tbs cíhcr ma-teria] facts necessary to sustain bis action, as was proper to be left to the Jury. The Defendant contended, that the act of 1796 was repealed by the act of 1820, without any exception or saving by which this action could be maintained. The Court, on this ground, non-suited the Plaintiff. He, moved for a new tria!, which was refused, and the Defendants bad judgment for costs. Plaintiff appealed.

JictvfltVG.

Be it enacted, &c. that from and after the first day of May next, *.vhcn any persoir'who has resided six months or more in any county of this State shall be about to remove out of the same, either .by land or water, it shall be his duty to advertise his intention of removal in at least three public places of tlie county, ten days previous to his removing, one of which advertisement'; shall be set up at the door of the justice of the peace to v. bom such person may intend to apply for •a certificate of his having so advertised, or at such other public place on the premises of the said justice as he may direct: and if any per-•¡on m persons shall remove, or iaiowhigly assist to remove any debtor or debtors, out of the county in which he shall have resided for the space of six months or more, who shall not have advertised himself in the manner as by this act required, and sludi have procured a certificate of the same from under the hand of some justice of the peace of the county, then such person so removing, or knowingly assisting it-, rrtvive such debtor- shall be liable to pay all debts which the per-’.or so removed might justly owe in the county from which he was removed ; which debts may be recovered by the person legally entitled thereto, by an action on the case: Provided, suit shall be commenced for the same within twelve months from the time the proof of such removal shall come to the knowledge of the person to whom the debt was so due; any law to the contrary notwithstanding.

Act of 1820.

An act to repeal an act passed in the year 17 96, entitled, “ An act to punish persons for removing debtors out of one county to another, or out of the state,” and for other purposes.

1. Be it enacted, &c. That an act passed in the year 1796, entitled, “an act to punish persons for removing debtors out of one county to another, or out of the state,” be, and the same is hereby repealed.

2. Be it further enacted, That if any person or persons shall remove or shall aid and assist in removing any debtor or debtors out of any county in which he, 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 such person or persons, so removing, aiding or assisting, shall be liable to pay all debts which the debtors or debtor so removed shall or may justly owe, in the county from which he was so removed; which debts may be recovered by the creditors respectively, who may be entitled thereunto, their executors ot administrators, by an action on the case : Provided, such suit shall be commenced within three years from and after the time of such removal.

Gaston, for the Plaintiff,

contended, that the act of 1820 was not a repeal, but simply a modification of the act of 1796 j that the Legislature evidently intended to make liable an individual who violated the act of 1796, with a particular intention mentioned in the act of 18201 that there never was a moment when the act of the .De» fendant was not unlawful, for at the same time in which the act of 1796 is repealed, that of 1820 is enacted. Any other construction would be an adherence to the letter, not to the spirit of the law; it would impute to the Legislature an intention to destroy the right of an individual to recover, in a case in which it is manifest they uniformly believed, justice required he should recover

Ruffin, contra.

This suit is founded on the act of 1796 alone, and under no circumstances can it he maintained, 'Whether the act of 1.820 repealed that of 1796, is to be ascertained in one of two ways only : the repeal is cither by express words, or bv inference direct from the words not express. The repealing words are here express, but were they not, then there is still such an inconsistency between the acts, as amounts to the repeal of the former. The proper mode to ascertain the intent of the Legislature as to the repeal or modification only of an existing law, is to consider cases as they may arise, deeming, on the one hand, the last act a repeal, and, on the other, only the continuance of a former system ; if absurdity follow from the consequences resulting from either of these modes of considering it, such mode is not conformable in its construction to the legislative intention. Now the act of 1796 declares, suit must be brought within twelve months from the time proof of the removal comes to the knowledge of the person injured ; that of 1820, within three years from the time the act is committed. Again, how could the Court give judgment in such case as this ? It is brought on the act of 1796 3 that act is repealed expressly. To punish it under the act of 1820, the removal must have been made with a particular intent 3 the declaration avers nothing as to intent, and the Court cannot look at the evidence to learn it, for its judgment must he founded on the record before it. In truth, the act of 1820 has nothing to do with the cause of complaint in this action 5 but if it had, then Plaintiff should have declared on all the statutes which give him his right of action — (Jscrotcr v. Harrington, 1 Ilawks’s Hep. 192.) However the declaration might be, yet the nonsuit was proper, for the record shews that the Plaintiff offered no evidence as to intent,

Taylor, Chief-Justice.

It appears to me that the two acts of 1796 and 1820, are constructed upon prinoi pies, and intended to suppress acts so different from each °^er> that the last, would, of itself, have operated a repeal of the first, upon the rule leges posteriores, &c. An ac£¡on untjel. the first, statute, must be brought within a year from the time the removal came to the knowledge of the Plaintiffs : an action under the law of 1820, must be brought within three years from the time of removal. If then, an action is brought under the first law, upon the supposition that it is not repealed, and the limitation, of the second act is applied because the offence was committed after it, and the Plaintiff is able to prove a fraudulent removal, it follows that the Defendant may he liable after the period when he stood acquitted by the first .act. The effect of this construction is to give a highly penal law a retrospective force; for a person who removed a debtor, with whatever intention, is not liable at all under the act of 1796, provided advertisements were duly made $ yet if by superadding a fraudulent intent he could be made liable, and be then relieved upon the limitation of the first law, he would be repelled by the answer, that the act described in the declaration was not the one which the law of 1796 had barred within a year. I cannot perceive what necessity there was for declaring on the act of 1796, when the wrong complained of was committed after the enactment of that of 1820.

Whatever doubt, however, there might be as to the consistency of these two laws, if that were the sole question, and if in obedience to the advice of Lord Coke, in ■Foster's case, the statutes ought not to be abrogated by any constrained construction out of the general and ambiguous words of a subsequent statute, but that it is «to he maintained with a benign and favourable construction,” these two laws could stand together; yet when the latter was made expressly to repeal' the former, and does repeal it in so many words, I feel myself directed by the legislative will, and in adjudging the act of 1796' to be repealed, that I am travelling over the “ ancient high ways” of the law.

Hall, Judge.

This action is brought after the act of 1820 had repealed the act of 1790, hut the alleged cause of action happened before that time, and while the act of 1796 was in full force; and if it can be sustained it must be upon one or the other of these acts, or upon both of them, for at Common Law, the removal complained of was no offence. I think it cannot be sustained upon the act of 1796, because the act of 1820 totally repeals it, and it would seem equally clear that it could not be sustained upon the act of 1820, because the alleged cause of action happened before its passage, and I should think it could not rest'upon both acts for its support, because only the act of 1820 was in force at the time of the institution of this suit.

In addition to these considerations it may be observed, that, that which would amount to an offence under the act of 1796, would be no offence under the act of 1820 ; and that which is an offeuce under the act of 1820 would not have been an offence under the act of 1796. Thus, if before the act of 1820, one person had assisted another to move out of the county with the most wicked and fraudulent intent, yet if lie had given due notice thereof as the Jaw directs, he was guilty of no offence for winch an action could be sustained ; but if such notice was not given, he subjected himself to an action, however innocently the act was done. Under the act of 1820, the ■person doing the act is only answerable if he does it with a fraudulent intent, notice is immaterial. Under the first act, the intent was nothing, if due notice was given ; ■under the last act, the intent is every thing, whether notice be given or not. A new trial, 1 think, should be re-, fused.

Henderson, Judge,

dissentiente. — The Plaintiff in this case declares, that the Defendant, with an intent to injure and defraud the Plaintiff, and to deprive him of a Jus^ demand which he had against C. D, aided and as-sisted the Defendant, in the year 1818, to remove him-sej£ ouj. 0f tjic COunty, with all the averments necessary to bring the case within the operation of the act of 1796. The Judge before whom the cause was tried, was of opinion, that the act of 1820 so entirely annulled the effect of the act of 1796, that no penalty inflicted by that act could be enforced, although an action might be pending for the penalty when the act of 1820 was passed. It is in this way I understand the record, and shall so consider it. That the act of 1820 repealed the act of 1796, cannot be denied, for independent of other reasons, there are express words of repeal; but it does not follow, in my understanding, that this penalty is waived or released by the Legislature. It is admitted that all penalties exist by the will of the Legislature, and that any time before they were actually inflicted, the Legislature may remit or release, whether suit is pending for them or not, and whether at the instance of an informer or party grieved. It is also admitted that this is a penalty, for the amount of the debt is inflicted, regardless of the actual injury sustained by the Plaintiff. When the act was done, to wit, in 1818, there was a law in being which made it penal | and the question is, has the Legislature done any thing, from which it can be discovered that they no longer wish the penalty to be inflicted. In an act of repeal, generally, there is not any express declaration that the penalties incurred, and not inflicted, by the repealed act, shall be remitted,-but Courts of Jus - tice, whose business and duty it is to construe the acts of the Legislature, have found, or think they have found, an intent in the Legislature to remit the penalties, on the simple ground, that if an act is not of itself criminal to-day, it was not criminal yesterday'; and if prevented yesterday, it arose either from mistaken principles of justice, or from some principle of policy which no longer existed, and the very act of repeal was evidence of the one or the other. The Courts, therefore, by this or some such mode of argument, arrived at the conclusion, that the Legislature no longer desired to inflict the penalty. This was in cases of simple repeal; but the Legislature might, as I hey have done in numerous cases, repeal the law, and by the words thereof give the repealing law entirely a prospective operation, as by declaring it should not affect any penalties incurred under the repealed law'. In the law of 1320 there is no declaration tiiat penalties incurred under the act of 17"96 shall be remitted but there are the strongest reasons to believe, nay, a doubt cannot be raised, that it was not designed to remit such a penally as was incurred by the act charged in this declaration ; for in the very act of repeal, tikis act is subjected to the very same penalty as it would have been under the act of 1796 : without express words such intent cannot be inferred, in 1819 an act is done, which, under the act of If56, is penal j in 1821 an act in every respect the same, is done : the latter act is punishable under the act of 1820, and yet the very same act, without any express words, protects the act done in 1819 from punishment$ that is, from an act of the Legislature declaring a certain act to be criminal and inflicting punishment, an inference is drawn that the act is no longer criminal, and that no punishment shall be inflicted on it; thus the act of 1796 declares, that, if a person shall aid or assist in the removal of a debtor, (and if he docs it with a fraudulent design he is not bettered,) certain requisites not being complied with, that such person shall pay the debts of the debtor ; by the act of 1820 it is declared, that if a person shall fraudulently assist a debtor, he shall do the same thing : this, it is said, is evidence that the Legislature no longer designed to punish the act. The present Defendant, in 1818, when the act of J 796 was in force and attached on his acts, aided and assisted a debtor to remove, that debtor not having given notice or taken the precautions required by the act, but he went further than what was necessary to render him Hable under the act of 1796 $ for it is charged that he a*ded with a fraudulent intent, which I presume will not take the case without the act. I see nothing in the act j 820, which shews an intention in the Legislature no longer to inflict penalties for such acts. It is said that the act of 1796 protects the most fraudulent aider, if the requisitions of the act are complied with, and that under 1820, an innocent one is protected without precautions, and that a guilty one is not. This is admitted. This suit is not brought or supported by the act of 1820 ; it is founded entirely on the act of 1796. Any thing necessary to charge him under that act must he shewn, and every defence under that act is allowable. That statute attached on the transaction; it governs it. By that shall the parties be judged, not on the two together, farther than to look into the latter for the sole purpose to ascertain if the penalty is expressly or constructively waived ór remitted.

In answer to the objection, that more is stated in this declaration than is necessary to support the action, to wit, the fraud, and the Defendant must have the spirit of prophecy to foretell that it would be necessary ; I find it here, and if a person, not gifted with the same spirit, should declare on the act of 1796, so as barely to bring the case within the act, and pending the suit the law of 1820 should have been passed, the Court would permit the alteration to be made in the declaration, under their general power of allowing amendments, if the Plaintiff should require it and believe that he could superadd the proof of fraud to the other allegations ; and thus exclude the idea of remission or release apparent in all cases depending under the act of 1796, where the assistance was not given fraudulently. I therefore think that the opinion of the presiding Judge was wrong in declaring that the act of 1820 was a total repeal of the act of 1796, and that under no circumstances could the action be maintained.