Roberts v. Erwin, 9 N.C. 48, 2 Hawks 48 (1822)

June 1822 · Supreme Court of North Carolina

9 N.C. 48, 2 Hawks 48

Roberts v. Erwin.

From Burke.

In a suit brought on the act of 1796, for the removal of a debtor, it appeared that pui.l;'. advertisement had not been made, by 1u ■ person removing, pursuant to the act of Assembly, but that distinct, personal notice. v.ras given to the Plaintiff, of the intended removal; it was held, that this personal notice accomplished the object of the law, and dispensed with the necessity of advertising pursuant to the statute.

Although a removing d -bha’ has not procured a certificate of advertisement, fp>m a magistrate, pursuant to the statute, yet the fret of the advertisement having been made, may be proved on the trial.

This was an -idit»» for the removal of a debtor, founded oh the act of K06. The rWiiliff produced satisfactory evidence, of a debt, due to him, by one Craig, ;F: the. time of CraigV removal. IMewdant proved, trait on the. SOth of Jana'.ry, 1819, be informed the PlaiitJif, th„d be was about to !«.»« Craig to the county of Buncombe, and iolei the FI '.on iff. that be wished the creditors of Craig to lake as inventory of his property, and that ha (the Defendant) would he answerable for it j to which the Plaintiff m Imd, that if he were made safe, he had no objection to Í'raffs removal. A few days after this conversation,, ON;, wise lived a few feet from the Plaints ;T, remoi rd, and was seen in the art_of removal by Plaintiff, who ."mide no objection thereto, and did not arrest Craig for 5ns debt. The íDefe.ndauf a«ín¡»tiled, tiiat the debtor had not advertised agreeably to the previsions of the act of A-.,embíy. Upo» this evidence, tie Court below instructed the Jury, that although the Plaintiff might have hr. personal .notice of the intention of Craig to remove out of the county, yet inasmuch as the E'eien-daut had not eomplie.il with the act of Assembly, in advertising and obtaining a certificate, he was liable.

Verdict for the Plaiutiif, new trial refused, judgment and appeal.

Taylor, Chief Justice.

The act oh which ibis suit is fouuded, was passed for Hi<* sorority of creditor, to on-f.M*> fijeto to cprest <licit* debtors who «vero about to re-launa-, by rwforcitig them to given public en»! genera! mo-tico of sKoh ii-t-'iitiosij a suGicioni Tmc befos*-? the rosno-val. Ato tor.- debtor might luvykri. ito". and depart in si"'*is«’? -vi l secrecy, leaving ¡sis creditor w>í»oli? remedí-leso; ¡sitd is. therefore, seemed ctopc-dícrst that those who liad eiubled him to do so, should become responsible to liis mtiitors, who were thus deprived of their claims fey hi* agency tuta susistancc, The act. then-lore, «eases U too interest of Use person rcsnevíi?,'-; to look to this general notice having been give», by subjecting him to the debt/; if it has boon omitte-i f and any ore acquainted with the acto who veas applied to, to totoci the removal of a d"btoi*, wotto! naiureJiy er/paire whether, by so do-big, he was tiidinq him in creep tog íto?«: Ms creditor, aní! evading too proceso of the Lnv, The law ought, therefore, to receive such acon.-dpucilim beat comports with toe l of the case, and the evatoet pui-pi)’*? of the Li-ytototore, instead of a stoict on-- foe the sake of muídíig one man pay the debts of anoto,"!*, when, in reality. the creditor is placed iu no worn» situation by his conduct. If a c.-editor has received distinct and personal notice of Hie intended remov*^ the object of the law is accomplished; and here, that tsofice was not only given, but the iPLumüff declared libs acipúeocouee in the propriety of the stop, and said he had no objection if he were made safe. At this time h? might have arrested Craig, for the bond was then due. A few days after-wards, lac knew that Craig was in the act of removing his effects, but took no steps o impede him. it is then, evident, that the Plaintiff had timely notice, and jjiiite as full and satisfactory as if advertisements had been exhibited in illiv? public places in the county. This view of the act of Assembly Is la conformity with a decision recently made in this ¡Court, in which it was held that although tiio debtor had not procured a certificate from the Justice, yet the fact of the advertisement being made might be proved on the trial. Without giving an oui- * * 1 nion on the other point made in the case, I think there 0Hght to be a new trial.

Hall and Henderson, Judges, concurred,