Hodges v. Lassiter

• Decision Date: 03 June 1887
• Citation: 2 S.E. 923,96 N.C. 351
• Court: North Carolina Supreme Court
• Parties: HODGES and others v. LASSITER and others.

96 N.C. 351

2 S.E. 923

HODGES and others

v.LASSITER and others.

Supreme Court of North Carolina.

June 3, 1887.

Appeal from Hertford county.

Winborn & Peebles, for plaintiff.

Barnes & Pruden, for defendant.

SMITH, C. J.

On October 27, 1878, H. T. Lassiter & Son, consisting of H. T. Lassiter and Walter T. Lassiter, and conducting a mercantile business in the town of Murfreesboro, becoming involved, and being unable to meet their liabilities, largely due in Baltimore, made an assignment of their entire stock of goods, notes, bonds, bills, and credits of every kind, to James S. Whedbee and John S. Dickerson, partners of the firm name of Whedbee & Dickerson, in the said city, in trust to secure and provide for the payment of the sum of $12,000, due themselves, then of the sum of $2,000 due to James Carey & Co., and thereafter of all other outstanding claims against the assignors.

The present action is instituted by creditors of the last class to impeach the validity of the assignment, and charges that it was the result of a conspiracy between the parties to it, to hinder, delay, and defraud the other creditors; and such was the intent and purpose of the debtors, and this was known to and participated in by the trustees, to whose claim preference is given. These imputations are denied in the answer, which asserts that the conveyance was bona fide made, and to provide for debts due and owing by the assignors. From these conflicting allegations a single issue was eliminated and submitted to the jury: Is the assignment made by Lassiter & Son to Whedbee & Dickerson fraudulent and void as to their creditors? To this the answer is, no. From the judgment rendered upon the verdict against the plaintiffs they appeal. This brief summary will enable us to proceed to the consideration and disposal of the exceptions found in the record.

First Exception. One of the jurors of the regular panel was challenged by the plaintiffs upon the ground that he had a suit pending and at issue in the court. The following are the facts upon which the objection rests, as found by the judge: At spring term, 1884, a year before the trial, the juror and four others were indicted for an assault with a deadly weapon upon one Braxton Brown, and the prosecution had been since depending without any plea. On Tuesday of the present term the indictment was disposed of by two of them submitting to a verdict of guilty, while a nolle prosequi was entered as to the other three, among whom was the juror. The court, being of opinion that the juror was competent, overruled the challenge for cause, and he was therefore removed by a peremptory challenge of the plaintiffs. This, with three other peremptory challenges made afterwards, exhausted the number to which the plaintiffs were by law entitled.

The exception to this ruling raises the inquiry as to the proper construction of section 1728, Code, which is in these words: “If any of the jurors drawn have a suit pending and at issue in the superior court, the scrolls with their names must be returned into partition No. 1 of the jury box.” Primarily, this is a direction given to the county commissioners when they proceed to draw the jurors, by a child not exceeding 10 years of age, for regular service at the next term of the superior court held thereafter, as pointed out in the preceding section, but it must be deemed a fundamental disqualification in the juror whenever it is made to appear. But is the present case within the terms of the statute? The word “suit” properly designates a civil proceeding in court between parties, and, while it may admit of more comprehensive import, is used in this connection in the more restricted sense. One accused of crime, and prosecuted for it, could hardly be said to “have a suit pending,” while the language may be well applied to either party to a controversy which has found its way into court, to be there settled. If, however, all actions, civil or criminal, are included, as the mischief intended to be provided against is the same, no issue had been reached at the time, as no defense had been entered. The cause, though pending in the superior court, was not at issue, and consequently, if it had been a civil action, it would not have rendered the juror incompetent.

Upon a similar enactment we have found but two reported cases where its construction has been considered, and these do not meet the point of present inquiry. In Riley v. Russell, 1 Heisk. 294, six jurors were excepted to as having suits in the courts, but not for trial at the term, and they were held to be incompetent. There were two enactments in the Code of the state,-one forbidding the appointment of a juror who had a suit pending at the term, and the other disqualifying a juror and making it a cause of challenge that the juror had a cause “ pending for trial,”-and these were construed together in ascertaining the effect of the legislation. In Plummer v. People, 74 Ill. 361, the statute declared incompetent a juror who “is a party to a suit pending for trial in that court at that term.” It was contended by the attorney for the people that the disqualification did not attach unless the trial took place at the term. It was ruled otherwise by the court, and that it was only necessary that the juror should have a suit for trial, and it was immaterial whether it was in fact tried during the term. The jurors had civil actions in the courts.

Second. The next exception arises out of the refusal of the court to allow an inquiry to be put to a witness as to what the trustees had realized from the collection of credits. The objection to the proposed inquiry was that it was not then appropriate, as the plaintiff's right to an account was not denied, and that the condition of the trust fund would properly come up under a reference for an account; and this objection was sustained.

We are unable to see the pertinency of the information to an issue of fraud in the making of the assignment, which alone was before the jury, and we find no error in ruling out the evidence. It was conceded that H. T. Lassiter & Son-the latter of whom has since died-were insolvent at the time the assignment was made. A series of letters passing between the parties to the deed of assignment, dated between November 14, 1878, and December 10 of the same year, as well as other communications passing between the said trustees and their agent sent out to take charge of the property after the conveyance, the last dated December 3d, were read in evidence by the plaintiffs to sustain the charge of fraud, and they ask that the following instruction be given to the jury: “(1) That, if the jury believe the evidence, they should find that the assignment of November 27, 1878, from Lassiter & Son to Whedbee & Dickerson, was intended to hinder and delay and defraud the creditors of H. T. Lassiter & Son.” The court read the prayer in the presence of the jury, and said he could not give the instruction and refused it, and plaintiffs excepted. “(2) That, in order to sustain said assignment, the defendants must satisfy you that the debt recited in the assignment, or a substantial part thereof, was actually due from Lassiter & Son to Whedbee & Dickerson; and there is no evidence to show that fact, and hence the jury should find that said assignment was...