March v. Wilson
| Decision Date | 31 December 1852 |
| Court | North Carolina Supreme Court |
| Parties | WILLIAM B. MARCH v. GEORGE WILSON et al. |
The bail of a person arrested under a writ of capias ad respondendum, may maintain an action on the case at common law, against one for fraudulently aiding and assisting the principal to remove from the County, in consequence whereof he had the debt sued on to pay.
There is no distinction between frauds consisting mainly in acts, and those which consist mainly in words--the criterion of the plaintiff's right of action and the defendant's liability being, that the one should have been damaged, in consequence of the fraud of the other.
Nor is it any defence to the action, that the defendant did not know that the plaintiff was the bail of the person removed, and could not therefore have intended to defraud him.
In such case, the allegation in the declaration that the plaintiff was the bail, is supported by proof of his being special bail--as Sheriff, under the Act of Assembly.
Nor is it ground for arrest of judgment, that the declaration does not aver that a scire facias had issued against the plaintiff as bail, before he satisfied the judgment against his principal.
(The cases of Erwin v. Greenlee, 1 Dev. & Bat. 39, Barker v. Munroe, 4 Dev. 412, and Gardiner v. Sherrod, 2 Hawks. 173, cited and approved.)
THIS was an ACTION ON THE CASE, tried before his Honor, Judge MANLY, at Fall Term, 1851, of the Superior Court of Law of Surry County--the case having been removed to that County, from the County of Davie.
The platntiff, in his declaration, alleges that as Sheriff of Davie County, there came to his hands a writ of capias ad respondendum against one Henry F. Wilson, sued out at the instance of Braxton Baily and Thomas M. Young for debt, and returnable to the May Term, 1843, of the County Court of Davie; and that he executed the writ, and “became the bail of said Henry F. to answer said action.” That judgment was afterwards obtained by Baily and Young for the debt against the said Henry, to wit, at the August Term following of the said Court; and a writ of capias ad satisfaciendum was thereupon issued against the said Henry F., and returned “not to be found”--the said Henry F. having, in said month of August, absconded and removed from the County and State, and never since returned. And that the plaintiff, by reason of “his being the bail of the said Henry F. as aforesaid, and by the absconding and removal of him the said Henry F. became and was liable to answer and pay to the said Baily and Young their said judgment, debt, interest and costs of suit; and being so liable, they demanded and recovered from him $ --which has not been repaid to him,” &c. And the declaration then alleges that the defendants unlawfully and fraudulently aided and assisted the said Henry F. to remove fom the said County and State, with intent to evade the payment of the said debt, and to hinder and prevent the plaintiff from arresting and surrendering him, &c.
Plea, general issue.
It appeared in evidence on the trial, that Henry F. Wilson, a resident of Davie County, was indebted to Bailey and Young for $263.28 due by bond; that Baily and Young commenced their action on the bond by writ issued 11th May, 1843, and returnable to the County Court of Davie, which writ was directed and delivered to the plaintiff, who was then Sheriff of that county, and by him was executed, without taking bail from the said Henry, and so returned to Court. That Baily and Young, at August County Court, 1843, of said County, obtained judgment on their said bond; and that on the 19th of August the said Henry absconded from the County of Davie and left the State. Baily and Young demanded the satisfaction of their said judgment of the plaintiff as special bail for said Henry, and he paid it to them the 13th day of January, 1845. There was evidence tending to show that the defendants fraudulently aided and assisted the said Henry F. Wilson to remove from the State in August, 1843, to evade the payment of his debts, among them the said debt of Baily and Young.
The defendants insisted that as they did not know the plaintiff was the bail of the said Henry, they were not liable, and that there was a variance between the declaration and proof; and upon the whole case, asked his Honor to instruct the jury, that the plaintiff could not recover--but his Honor was of opinion that the particular intent to defraud the plaintiff was not necessary; and if the defendants had fraudulently combined to defeat the collection of the debt wherein the plaintiff had become liable as special bail, under the Statute, and the plaintiff was thereby injured, he was entitled to recover.
Upon the question of variance--to wit, that the allegation that the plaintiff had become bail, was not supported by proof that he was liable under the Statute, by reason of his neglect, his Honor was of opinion that it was not such a variance as required a withdrawal of the testimony from the jury, or such as would defeat the plaintiff's recovery. Under instructions to this effect, the jury returned a verdict for the plaintiff.
A motion was then made in arrest of judgment, on the ground that it was not sufficiently stated in the declaration, that the plaintiff had paid the money, which was overruled; and judgment having been rendered on the verdict, the defendants appealed.
Miller, for the defendants .
No counsel for the plaintiff in this Court.
This is an action on the case at common law against the defendants for fraudulently aiding and assisting one Henry F. Wilson to abscond from the State, whereby the plaintiff, who had become his bail, was compelled to pay the debt for which the said Wilson had been arrested. It is admitted to be a case of the first impression. Neither the industry of counsel nor our own research has enabled us to find one, the circumstances of which are similar to the present. The question then is, can the action be sustained? If it be new in the principle, then, though a wrong may have been done by the defendants, from which an injury has resulted to the plaintiff, it will require legislative action to remedy the mischief; but if it be new only in the instance, calling only for the application of a well established principle to a new combination of circumstances, then it may be maintained, as has been well settled, at least ever since the celebrated case of Pasley v. Freeman, 3 Term Rep. 51. We will proceed then to inquire whether there is any recognized principle of law, which can be called in to the support of this action.
In the case of Bailey v. Merrell, 3 Bulstr. Rep. 95, CROKE, Judge, said that “fraud without damage, or damage without fraud, gives no cause of action; but where these two do concur, there an action lieth.” This principle has been often since recognized by the most eminent Judges; and in the application of it to the great variety of frauds, which the wicked heart of man has conceived, no distinction has been made between frauds which consisted mainly in words, and those which have consisted mainly in acts. Without pretending to refer to all the cases on the subject of which the books give us an account, we will bring forward a few leading ones, which seem most apposite to our purpose. In Pasley v. Freeman, it was held by the Court of Kings Bench in England, that a false affirmation with regard to the credit of a certain person, made by the defendant, with intent to defraud the plaintiff, whereby the plaintiff was endamaged, was the ground of an action on the case; and that in such action, it was not necessary that the defendant should be benefited by the deceit, or that he should collude with the person who was. One of the Judges, GROSE, dissented because, as he said, it was only a false affirmation, and that no case could be produced, where an action had been sustained for a mere falsehood; but the Chief Justice, Lord KENYON, and Judges BULLER and ASHURST held, that there being fraud in the defendant, and a resulting damage to the plaintiff he ought to recover. Langridge v. Levy, 2 Mees. & Welsb Rep. 519, is a still stronger case. It was there decided by the Court of Exchequer, that the plaintiff might maintain an action against the defendant, for falsely and fraudulently warranting a gun to have been made by Nock, and to be a good, safe and secure gun, and selling it as such to the plaintiff's father, for the use of himself and his sons, one of whom, to wit, the plaintiff, confiding in the warranty, used the gun, whereupon it burst and wounded him. The judgment was afterwards affirmed in the Exchequer Chamber, 4 Mees. & Welsb. 337, and the principle of it approved and acted upon in Pilmore v. Hood, 5 Bing. New Cas. 97. In Upton v. Vail, 6 Johns. Rep. 181, which was an action on the case for falsely and deceitfully recommending another as a man of property, whereby he was trusted and the debt lost, the case of Pasley v. Freeman was solemnly affirmed; and the Court, per KENT, Chief Justice, said Another case in New York may perhaps be regarded by some as having carried the principle almost too far. In Benton v. Pratt, 2 Wend. Rep. 385, the facts were, that Sedgraves and Wilson, who lived in the town of Allenton, in the State of Pennsylvania, at a distance from the plaintiff, agreed verbally with him, that they would purchase a certain number of hogs from him at the market price, if delivered within a specified time, and if they should not have been previously supplied. While the plaintiff, about the time specified, was on the way to Allenton with the hogs, he fell in with the defendant, who was going to Easton with a drove of the same kind of animals....
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