Opinion · Nclaw North Carolina

CHEEK v. DAVIS, 26 N.C. 284 (1844)

26 N.C. 284

Type: Opinion
Court: Nclaw North Carolina
Jurisdiction: Nclaw
Date: 1844-01-01
Topic: general

CHEEK v. DAVIS, 26 N.C. 284 (1844) JOSIAH CHEEK v. LINDSEY DAVIS.Supreme Court of North Carolina (June Term, 1844.) 1. A debtor who proposes to take the benefit of the insolvent debtor's act may at any time after his arrest upon a ca. sa. and before he files his schedule transfer any portion of his property bona fide for the payment of any of his debts contracted before his arrest. 2. A ca. sa. binds nothing but the debtor's body, and leaves his property free to be disposed of for any bona fide purpose of discharging other debts.

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CHEEKv. DAVIS,26 N.C. 284(1844)

JOSIAH CHEEK v. LINDSEY DAVIS.

Supreme Court of North Carolina

(June Term, 1844.)

1. A debtor who proposes to take the benefit of the insolvent debtor's act may at any time after his arrest upon aca. sa. and before he files his schedule transfer any portion of his propertybona fidefor the payment of any of his debts contracted before his arrest.

2. Aca. sa. binds nothing but the debtor's body, and leaves his property free to be disposed of for anybona fidepurpose of discharging other debts.

APPEAL fromDick, J., at Spring Term, 1844, of RANDOLPH.

In this case the defendant had been arrested on aca. sa., at the instance of the plaintiff, on 15 February, 1842, and gave bond for his appearance at the County Court of Randolph at February Term, 1842. The defendant, on 18 April, 1842, filed his schedule in the office of the clerk of the county court aforesaid, which schedule was dated 1 April, 1842; and at May Term, 1842, the defendant moved the said court to be discharged from custody under the provisions of the act of the General Assembly for the relief of insolvent debtors.

The plaintiff suggested fraud, and made up an issue with the defendant, which issue was tried in the County Court of Randolph and found in favor of the defendant, when the plaintiff appealed to the Superior Court.

On the trial in the Superior Court, the plaintiff proved by a Mr. Drake that during the week of the Superior Court of Randolph County, about the last day of March or first day of April, 1842, he paid to the defendant the sum of $80, which sum had been brought from the (285) county of Columbus for the defendant by a man of the name ofPage 217Swaim. The plaintiff further proposed to prove by the said witness that at the time Swaim left the money for the defendant he also left a receipt given by a constable of Columbus County to the defendant for a note of $24, due by some person in Columbus. This evidence was objected to by the defendant's counsel on the ground that the plaintiff had not given notice to the defendant to produce the said receipt. The court sustained the objection and rejected the evidence. The plaintiff then proved that on 7 March, 1842, the defendant obtained a bond payable to himself for $125, executed by one Asa Godbolt, which bond was assigned by the defendant to one Close Davis before 18 April, 1842, in payment of abona fidedebt of the defendant due and owing before he was arrested on theca. sa.

It was admitted by the plaintiff on the trial that the $80 paid by Drake to the defendant, as before stated, had all been paid out to the defendant before he filed his schedule in the discharge ofbona fidedebts. It was further admitted by both parties that a part of the above sum of $80 was paid out by the defendant in the discharge of his debts between 1 and 18 April, 1842.

The plaintiff's counsel moved the court to instruct the jury:

(1) That all payments of debts and transfers of property made by the defendant after he was arrested on theca. sa. were a fraud upon the law, andper sefraudulent as to the plaintiff.

(2) That the payment of debts made by the defendant between 1 and 18 April, 1842, were fraudulent, and entitled the plaintiff to a verdict.

The court refused the instructions prayed for, but instructed the jury that the defendant might paybona fidedebts after his arrest which were due and owing from him at the time of his arrest, provided such payment were made before he filed his schedule. The court further structed [instructed] the jury that any payment ofbona fidedebts or transfer (286) of property in the discharge ofbona fidedebts made by the defendant before the filing of his schedule on 18 April, 1842, would be lawful, provided they were satisfied the debt or debts were justly owing from the defendant, and the payment or transfer wasbona fideand for the sole purpose of discharging the said debts.

The jury found a verdict for the defendant, and judgment being rendered pursuant thereto the plaintiff appealed.

No counsel for plaintiff.Mendenhall and Iredell for defendant.

NASH, J.

The only question arising under the instructions prayed for is whether the payments made by the defendant after his arrest on theca. sa. and before the filing of his schedule were in fraud of the rightsPage 218of the plaintiff. We are clearly of opinion that they were not; in other words, that the law gave the defendant the right to pay any debt which he justly owed before the filing of his schedule, provided the debt was due before the arrest.

The Insolvent Act, as it is called, evidently, by its phraseology, contemplates that the schedule filed by a defendant shall contain a true account of all his property as it is at the time of its being filed. Section 4 of the act, in pointing out what measures a debtor who has remained in close confinement for twenty days shall pursue to obtain his discharge, prescribes the oath to be taken by him. It is: "I, A. B., in the presence of Almighty God, solemnly swear, profess, and declare that the schedulenowdelivered," etc. This section emphatically shows that the time to which the act refers as governing the insolvent's right to take the oath is when the schedule is filed. If at that time he makes a true statement of his property, and in the meantime "has not directly or indirectly in any way disposed of any of it, either real or personal, whereby to secure to himself any profit or advantage or to defraud or deceive any of his creditors," the law is content, and he is entitled to his discharge.

(287) Afieri faciasbinds the property of the debtor from itsteste, so that he cannot alien any portion of it, to the disappointment of the plaintiff. Aca. sa. binds nothing but the body, upon which it is executed, and leaves the debtor's property free to be disposed of as he pleases. When, however, he comes to claim the benefit of the law provided for him, he must be prepared to bring himself within its provisions.

In this case it is admitted that the money in question was appropriated by the defendant to the payment of debtsbona fideand justly due by him. In paying these debts, he has violated no law, nor been guilty of any fraud. We think, therefore, there was no error in the charge of the judge, and the judgment must be affirmed.

PER CURIAM. No error.Cited: King v. Trice,38 N.C. 573.