Crain v. . Long , 14 N.C. 371 ( 1832 )

The case of Burton v. Dickens, 3 Murph., 103, was decided expressly on the grounds that the Act of 1773, Rev., ch. 100, provides for notice to the imprisoning creditor only, and divested the whole of the debtor's property. Although it was deemed just that every creditor to be affected by his discharge should have notice, yet as the Legislature had, after the adoption of the Constitution, made no regulation to that effect, and the Act of 1773 contained none, the court was obliged to say that a discharge of the motion provided under that act should operate against all creditors, because the debtor might be perpetually imprisoned by successive executions by different creditors against whom he had no power by the act of protecting himself. But the Act of 1822, Taylor's Rev., ch. 1131, expressly requires notice and makes the discharge good only as against those to whom it is given. It puts it in the power of the debtor to protect himself if he chooses, and if he will not give notice it is his default and not the defect of the law. He is not imprisoned after a surrender of his property "in such manner as (372) by law shall be regulated." In this statute the great principle that every man shall be heard, before his rights are concluded, is enforced. When the expression "duly discharged" is so emphatically commented on by the counsel, the question is begged. It remains to inquire, against whom? It is a due discharge as to the parties in court, but it is not so as against those not heard and excluded from a hearing by the act or omission of the debtor himself. It is plain that an issue is given to "any creditor" to be affected by the order of discharge, and that the assignment is of the estate in the schedule only — nothing else is divested out of the debtor — and every creditor ought to be at liberty to show that the debtor has kept some back. In fine, the Constitution gives to the Legislature the discretion to regulate the manner in which the debtor shall deliver up his property, and their will is conclusive when expressed. It only restrains them from saying that when delivered up he shall not be discharged. If a statute therefore takes all away, without providing for a notice to particular creditors, the debtor has a right to say that he shall not be liable for debts, the means of satisfying which he is deprived of by law, and that the Legislature is bound to authorize a notice to all creditors, or the Constitution binds them without it. But when the law does provide for such notice, there can be no complaint against it, for its omission is the voluntary fault of the debtor himself.

PER CURIAM. Judgment reversed.

Cited: Williams v. Floyd, 27 N.C. 660; Norment v. Alexander, 32 N.C. 71;Griffin v. Simmons, 50 N.C. 148.