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LOUIS A. NIXON vs. HENRY NUNNERY.
Io a proceeding under the insolvent laws, when the debtor has been arrested
on a ca. 8a., it is too late for him, after giving bond and joining in an issue
of fraud, to take exception to the writ of ca. sa. Although the ca. sa. may be void, yet the Court has jurisdiction of the subject
matter, and objections to any part of the proceedings must be made in apt
time. When the creditor alleges fraud, if his specification be not sufficiontly certain
and a defendant, before issue joined, objects to it, and the Court should rofuse to make it certain, it would be error. But an objection to the specifi.
cation is loo late after issue joined. The verdict cures the defect. The rule is that the verdict cures all oniissions or defects, which must neces
sarily have beeu passed upon by the jury. A verdict is not too vague, when it responds to the issue. It is not necessary that the land, alledged to have been fraudulently convey.
ed by the debtor, should be over the value of ien dollars. The law does not permit the debtor to convey, with intent to defraud, land, or any other visible property, no matter how small the value.
Appeal from the Superior Court of Law of Cumberland County, at the Fall Term, 1847, his Honor Judge CaldWELL presiding.
This was a proceeding upon a ca. sa, returned original. ly to the County Court, where the proceedings were ordered to be dismissed upon the motion of the defendant, and from this judgment an appeal was taken to the Su. perior Court. In this Court the following specifications on a suggestion of fraud were made by the plaintiff, towit, "That the defendant, Henry Nunnery, conceals and now is the owner of horses, cows, ton timber (several thousand feet.) four mules, notes, judgments and accounts, and that he is also the owner of land or has an interest in land.”
The following issues were submitted to the jury, (the two first not necessary to be inserted, as the jury found on them for the defendant ;) 3rd. Did the defendant own
Nixon v. Nunnery.
land or any other interest therein at the time of issuing the ca, sa.? 4th. Did the defendant convey any land with intent to defraud his creditors since the issuing of the ca. sa.? 5th. Did the defendant convey any land with intent to hinder, defraud or delay the plaintiff in this action, since the issuing of the ca. sa.?
The jury found the 3rd, 4th and 5th issues in favor of the plaintiff : that is to say, that the defendant did own land, and did convey land with intent to defraud his creditors since the issuing of the ca. sa., and they further found that the defendant did convey land with intent to hinder, delay and defraud the plaintiff in this action, since the issuing of the ca. sa.
Upon the trial the defendant moved to quash the pro. ceedings upon the ground that the ca. sa. was void. The Court being of opinion that the defendant had waived any irregularity, by joining in the issue tendered by the plaintiff, refused the motion to quash ; and for the further reason that the motion to dismiss had been heretofore adjudicated in this Court. Upon the charge of the Court, the jury returned a verdict in favor of the plaintiff. The defendant then resisted the judgment upon the ground that the finding of the jury was too general and indefinite, The Court overruled the objection, and gave judgment that the defendant be imprisoned, &c. From this judg. ment, the defendant appealed to the Supreme Court.
W. B. Wright and Husted, for the plaintiff.
PEARSON, J. There is no error in the proceedings of the Court below.
After giving bond, and joining in an issue of fraud, it is too late to take exception to the writ of ca. sa. This is settled by more than one case.
Nixon v. Nunnery.
The defendant's counsel attempted to distinguish this case, by insisting that the ca. sa. was not simply irregu. lar, hut void ; that a void ca. sa. cannot confer jurisdiction, and that jurisdiction could not be acquired by ex. press conscnt, much less by consent implied from a waiver or neglect to take exception in apt time.
If the Court derived its jurisdiction from the ca. sa., there would be force in the argument. But jurisdiction of the subject matter is conserred by law; the ca. sa. and bond are only the means or process to bring the party in. to Court. Any defect in process may be waived.
The argument proves too much, if the Court, when a ca. sa. is void, has no jurisdiction and the proceeding is a nullity. Debtors, who have taken the oath and been discharged, may be arrested again. And should they rely upon the discharge, the answer will be, it is a nullity; the ca. sa. was void, and the Court had no jurisdiction.
The next objection is, that the specification was too vague, as no particular land was set out. Specifications are not required by statute, but have been adopted by the Courts, to aid defendants and inform them to what to di. rect their proofs.
If a specification be not sufficiently certain, and a de. fendant, before issue joined, objects to it, and the Court should refuse to require it to be made certain, it would be error.
But if a defendant does not object, and goes to trial, it is too late-he has taken his chance. The verdict cures the defect, for it must be taken for granted that evidence was offered which proved that the defendant had conveyed some particular land with an intent to defraud, otherwise a verdict could not have been rendered. The rule is that a verdict cures all omissions or defects, which must necessarily have been passed upon by the jury.
A declaration in trespass, for breaking the plaintiff's close in the county of Wake is not too general, unless by
Nixon v. Nunnery.
special plea the plaintiff is forced to re-assign. So, tres. pass for an assault is not too general, if defendant will go to trial on the general issue.
The last objection is, that the verdict is too vague, he. cause it does not describe any particular land, or find that the value is over ten dollars. The verdict is
respon. sive to the issue. But it was argued that the land should have been identified, to enable the defendant to make a "full and fair disclosure."
The law punishes the defendant for his fraud by im. prisonment; it does not undertake to enable him, by a verdict, to make a "full and fair disclosure.” When he applies a second time for the benefit of "the Act,” he is to make a clear conscience, under the penalty of a second imprisonment.
If the specification and verdict be certain, and the defendant makes a disclosure coming fully up to it, still if the plaintiff is able to show any other property, which has been fraudulently conveyed, the defendant will be again imprisoned, until he makes a "full and fair dis. closure,” which is a condition precedent to his discharge.
The other ground is equally untenable. The Act does not allow a debtor to convey, with an intent to defraud, land or any other visible property to the value of one cent. It provides, if the debtor has no visible estate, real or personal, and shall make oath, that he hath not the worth of ten dollars in any worldly substance, either in debts owing to him or otherwise, over and above his wearing apparel, &c., and that he hath not at any time since, his imprisonment or before, directly or indirectly, sold or otherwise disposed of, any part of his real or per. sonal estate, to defraud, &c.
This language need only to be read to be understood.
JOHN B. FREEMAN vs. JOSHUA SKINNER.
Where A. contracted to deliver to B. one hundred fish stands of a certain de.
scription, and upon tendering them, B. received fifty, but resused to receive the other filty, because they were not made according to the contract ; Held, that this receipt of the fifty stands did not make B. responsible for the other fifty, which were not made according to the contract.
Appeal froin the Superior Court of Law of Berlie County, at the Fall Term, 1848, his Honor Judge Bailey presiding.
The plaintiff agreed to make for the defendant one hundred fish stands, and to deliver them at Colerain, a fishery on the Chowan, between the first and twentieth of March, 1848, at the price of one dollar and fifty cents a piece. The stands were made and delivered within the lime specified, and the defendant received fisty of them, not in person, but by an agent. The case states that the stands were not made agreeably to contract, and the defendant refused to receive the remaining fifty.
His Honor, the presiding Judge, instructed the jury, that is the plaintiff made the stands according to contract and delivered them at Colerain, within the time specified, he had a right to recover the amount the defendant agreed to pay; that if they were not made according to contract, and the defendant had received fisty of them. then they should find a verdict for whatever they were worth. The jury found a verdict for the plaintiff for the sum of $134 69.100, of which $125 was principal.
Judgment being rendered accordingly, the defendant appealed.
Biggs, for the plaintiff.