Blue v. McDuffie

• Decision Date: 31 December 1852
• Citation: 44 N.C. 131
• Parties: NEIL R. BLUE, ADM'R. v. JOHN McDUFFIE & MALCOLM LEACH.
• Court: North Carolina Supreme Court

44 N.C. 131

NEIL R. BLUE, ADM'R.

v.JOHN McDUFFIE & MALCOLM LEACH.

Supreme Court of North Carolina.

December Term, 1852.

The 3rd section of the Act of 1844, chapter 31, (providing for the plaintiff a remedy against the bail of the defendant in judgment) embraces all judgments.

It is therefore no defence for the bail, upon scire facias to subject him, that no ca. sa. had issued against his principal, on a judgment in an action ex dclicto.

Though the caption as well as the preamble of a Statute, where the meaning of its provisions are vague, may be called in aid of construction, neither can control its enactments, when they are full and certain.

APPEAL from the Superior Court of Law of Cumberland county, at Fall Term, 1852, his Honor, Judge CALDWELL presiding.

John C. Davis had obtained a judgment in trespass vi et armis against one Gilbert McDuffie; and this was a scire facias sued out by his administrator against the defendants as the bail of said McDuffie, seeking to subject them to the payment of the plaintiff's recovery. The plea was, that no capias ad satisfaciendum had been duly sued out; to which plea the plaintiff demurred. His Honor, the presiding Judge, was of opinion that because of the broad language of the Act of 1844, no ca. sa. was necessary, and from his judgment sustaining the demurrer, the defendants appealed.

W. Winslow, for the defendants .

Banks, contra .

PEARSON, J.

This was a scire facias, to charge the defendants, as bail, to which the plea is, no ca. sa. has been issued against the principal. To this the plaintiff demurs, relying on the Act of 1844, ch. 31, sec. 3.

We concur with his Honor, that “because of the broad language of the statute, no ca. sa. was necessary.” The first section provides, that hereafter no ca. sa. shall be issued upon any judgment, rendered either in Court or by a Justice of the peace, unless there is an affidavit charging the defendant with fraud. The third section provides, that a plaintiff in any judgment, may proceed by scire facias to charge the bail, without having previously issued a ca. sa. against the defendant in such judgment. This is certainly broad language, and must include every judgment, unless there be some strong reason for making an exception in regard to one class of judgments.

It is said, judgments in actions ex delicto are not within the operation of the Statute; and we are referred to the caption of the Statute, “An Act more effectually to prevent the imprisonment of honest debtors;” and it is insisted, the Statute only protects such honest debtors as are within the operation of the Act of 1822, viz. debtors by matter ex contractu. There is some plausibility in the suggestion, but to authorize a construction, by which to exclude from the operation of the Statute more than one half of all the cases that are included by its words, there should be, not a plausible, but a conclusive argument--a demonstration.

We admit that where the words are vague and the meaning uncertain, the preamble, nay, even the caption may be called in aid, for the purpose of construction. (In making this concession, we violate the authorities of Dwarris on Statutes.) Are the words of the Statute vague, and the meaning uncertain? If ever a Statute did use words full and certain, so as to include all judgments, the Statute under consideration does so. After judgment is rendered against one...