Opinion · Superior Court of North Carolina
Kennedy v. . Fairman
Kennedy v. . Fairman, 2 N.C. 408 (Superior Court of North Carolina 1796)
- Type
- Opinion
- Court
- Superior Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1796-10-05
- Topic
- general
Mr. Williams objected, because he had not given notice to the plaintiff's agent, who lives in this place, ten days before the present, but one *Page 323 or two days notice only. It will be contended, on the other side, that ten days notice is not required by the act. The first clause directs notice in general to be given, without specifying for what length of time; a subsequent part says the creditor or creditors being noticed according to the directions of this act. Then in the latter part of the act, speaking of notice to be given when a schedule of effects is to be rendered by the debtor, it directs ten days notice to be given, and this is the part of the act referred to by the words (according to the directions of the act) in the foregoing part; by which the Legislature meant to express ten days notice.
Citator
UpLaw has not yet analyzed Kennedy v. . Fairman. The absence of a flag is not a finding that it is good law.
- Cited by
- 3 opinions
KENNEDYv. FAIRMAN,2 N.C. 408(1796)
Superior Court of North Carolina
Ten days notice must be given to the creditors before taking the insolvent debtor's oath. An insolvent debtor shall not be discharged if he will not account for property proved to have been in his possession shortly before, and sold to one who had acted as his partner in trade.
GENERAL DAVIE presented a petition to this Court stating the imprisonment of Fairman at the suit of the plaintiff for the space of twenty days, and prayed that he might be admitted to the oath of an insolvent debtor and discharged, and the Court appointed a day for him to be brought up; and now on this day, being the last of the term, he was brought into court accordingly, and prayed by his counsel to be sworn and discharged.
Mr. Williams objected, because he had not given notice to the plaintiff's agent, who lives in this place, ten days before the present, but onePage 323or two days notice only. It will be contended, on the other side, that ten days notice is not required by the act. The first clause directs notice in general to be given, without specifying for what length of time; a subsequent part says the creditor or creditors being noticed according to the directions of this act. Then in the latter part of the act, speaking of notice to be given when a schedule of effects is to be rendered by the debtor, it directs ten days notice to be given, and this is the part of the act referred to by the words (according to the directions of the act) in the foregoing part; by which the Legislature meant to express ten days notice. (409)
PER CURIAM.
Notice must be given that is expressly required. If there is no length of time prescribed in the act, it ought to be a reasonable time; and what is a reasonable time cannot be better ascertained than by referring to the time the Legislature has appointed in a similar case. The latter part of this act appoints ten days notice to creditors, whose debtor is about to deliver a schedule of his effects. The preparation for these creditors to make, is no greater than the preparation to be made by those of the other class, and, therefore, as long time should be given in the one case as the other. But, in truth, this act does provide that ten days shall be given in the case now before the Court. The true meaning of any written instrument is best collected from a view of the whole,et antecedentibus etconsequentibus. Notice is required in the first part of the same clause; in a subsequent part of the same clause it is required again, with the addition of the words, "according to the directions of this act"; and by the latter part of the act, notice of ten days must be given to the creditor of a debtor about to deliver a schedule. We are, if possible, to give every word some operative meaning, but we should give no meaning at all to the words, "according to the directions of this act," if we say they mean nothing more than the preceding words had expressed, or notice in general. Indeed, according to the construction of the petitioner's counsel, the whole of this sentence, so far as it relates to notice, is nugatory — notice having been directed before. Something more, therefore, must be meant by the additional words, "according to the directions of this act." It has reference to what is expressed in some other part of the act, having another meaning than that part of the sentence to which the words are additional; and that must necessarily be the term of ten days expressed in the latter part, by a reference to which these words have an effect and meaning, andPage 324complete the sense of the first clause directing notice, which otherwise would be incomplete and uncertain for want of defining the time. Therefore, the act provides ten days notice to be given. It has not been given in the present case, and the petitioner cannot be discharged.
So he was remanded.
At April Term, 1797, another person presented his petition to the Court by Robert Bell, his attorney, to be admitted to the oath of (410) an insolvent debtor and discharged, but he had not given ten days notice.
HAYWOOD and STONE, JJ.
That is necessary by the spirit of the act.
And they remanded him.
NOTE BY REPORTER. — Fairman petitioned HAYWOOD, J., in the vacation following this term, who granted anhabeas corpus, and Fairman was brought before him and the notices were admitted; but it being proved that not long before these judgments obtained, for which he was imprisoned, he had sold property to the amount of £ 1,100 to one Coghlin, who it was proven had subscribed receipts and taken notes as the partner of Fairman, and it being also proven that Fairman was present when money was lent by Coghlin, and a note taken in the name of Fairman and Coghlin, the judge required him to show the application of that money; and he being not able to do so, nor willing to attempt it, though a month's time was offered him for that purpose, and that he should be again brought up at the end of the month he was remanded.
NOTE. — The act of 1822, ch. 3, prescribes that no person shall be imprisoned upon anyca. sa. for any debt contracted after 1 May, 1823, who will comply with the requisites of the act, without fraud or concealment.