Burton v. Dickens
| Decision Date | 31 May 1819 |
| Citation | 7 N.C. 103 |
| Parties | JAMES M. BURTON v. JESSE DICKENS. |
| Court | North Carolina Supreme Court |
From Person.
A debtor imprisoned upon a ca. sa. surrenders his estate for the benefit of his creditors, and takes the oath of insolvency, agreeable to the provisions of the act of 1773, ch. 4, whereupon he is discharged: This discharge protects him from arrest at the suit of any other creditor, to whom he was indebted at the time. He is thus protected, not by any provision of the act of 1773, but by the 39th section of the Constitution of this State, which declares that the "person of a debtor, where there is not a strong presumption of fraud, shall not be confined in prison after delivering up, bona fide, all his estate real and personal, for the use of his creditors, in such manner as shall hereafter be regulated by law."
The act of 1778, ch. 5, enforced all such acts of the General Assembly as were in use and in force before the adoption of the Constitution, which were not inconsistent with that instrument. That act enforced the act of 1773, ch. 4, so far as the same provides for the discharge of insolvent debtors; and so much of the act of 1773, ch. 4, as left the debtor subject to the arrest of a creditor
at whose suit he was not confined previous to his discharge, is annulled by section 39 of the Constitution.
To entitle the debtor to this protection, he must deliver up, bona fide, all his estate real and personal for the use of his creditors. And it would seem not to be material whether he took the oath of insolvency in the Court in which he filed his petition, or in some other Court, if he give notice to the creditor at whose instance he is imprisoned. Notice to other creditors is not necessary, although the effect of his discharge as to them, will be a protection from arrest at their suit.
When the debtor delivers up his estate for the use of his creditors, and Commissioners are appointed, who give notice to the creditors to come in and receive their dividends, each creditor has an election to come in or not. If he come in and receive his dividend, his debt is satisfied: If he do not, he may sue out execution against such property as the debtor may thereafter acquire.
This was an application for a writ of supersedeas; and was founded upon an affidavit made by James M. Burton, setting forth that in 1806, Philips Moore, executor of the last will of Stephen Moore, deceased, sued out against him a writ of capias ad satisfaciendum upon a judgment recovered in Person Court; upon which writ he was arrested by the Sheriff of Granville county, and confined in the common jail of that county. That, wishing to avail himself of the benefit of the act ofthe General Assembly passed for the relief of insolvent debtors, he filed his petition in the Court for Person county, and annexed thereto a schedule of his estate, agreeably to the provisions of the act of 1773, ch. 4. That a copy of this petition and schedule were issued and delivered to the Plaintiff in execution, at whose instance he was confined. That Jesse Dickens, previous to the said arrest and imprisonment, had recovered a judgment against him in Person County Court, and that he gave notice to Dickens of his imprisonment, and of his intention to take the benefit of the act passed for the relief of insolvent debtors; that in the year 1806, in Granville Court, he, agreeably to the notices which had been served upon his creditors, took the oath of insolvency, and was discharged; that he was advised his person was thereby protected from arrest at the suit of any creditor to whom he was at that time indebted; and that Jesse Dickens, having revived his judgment aforesaid, had sued out against him a writ of capias ad satisfaciendum, and delivered it to the Sheriff of Orange county, in which county he then resided. He prayed for a writ of supersedeas, which was granted by his honor the Chief Justice; which writ was made returnable to the Superior Court of Law for Person county; and the question arising in this case being one of great consequence to
the personal liberty of the citizen, it was sent to this Court for the opinion of the Judges.
TAYLOR, Chief Justice: The supersedeas was granted by me in this case, from doubts which I entertained respecting the true construction of the act of 1773 for the relief of insolvent debtors; thinking 'it better that a question concerning the liberty of a citizen should be deliberately settled, though at the expense of delay to a creditor, than that an unfortunate debtor, who had surrendered all his substance, should, by a life of imprisonment, be prevented from acquiring more, under the force of expressions not in themselves clear and satisfactory. I cannot, however, discover, in the act, considered alone, any sufficient ground upon which he is entitled to a discharge: and were there no other source of relief, I fear the supersedeas would be discharged.
It is evident from every part of the first branch of the act, that notice need only be given to the creditors at whose instance the party is imprisoned, and that the discharge only operates against their claims; the words being "and shall stand forever discharged of all such debts so sued for," that is, in reference to the preceding expressions "taken or charged on mesne process or execution for any debt:" so that although a suit be instituted, yet unless the debtor be charged in execution on such suit, the discharge as to that creditor operates nothing. The words of the second...
To continue reading
Request your trial