McErwin v. . Benning , 8 N.C. 474 ( 1821 )

Haxx, Judge.

It has been objected in this case for the Defendant, that the act of 1806, (ck. 700, JV*ew Revi- sal,) does not afford the Plaintiff a remedy $ that that act only applies to Creditors and debtors. ’Tis true the title of the act speaks of the fraudulent conduct of debtors, in making conveyances, to avoid or delay the punishment of their just debts ; but the enacting clause declares, “ that upon any judgment rendered, if the Plaintiff will make affidavit, stating that the Defendant has no visible property to satisfy the same, &c. $ and that he has good reason to believe that the Defendant .lias fraudulently conveyed away property, and that some other person is fraudulently possessed of it, &c. the Court may order a scire facias to be issued against the person so claiming it.” It appears, therefore, that although the Plaintiff was not a creditor before judgment rendered, yet in the words of the act, upon the happening of that event, upon making affidavit, he is entitled to a sdre facias. In doubtful cases, the title and preamble of an act should have their due weight: in this case, I think there can be no doubt, the remedy given by the act is substituted in the room of a more circuitous one, but the rights of the parties» are left as they stood before. I therefore am of opinion, that the judgment of tlie Court below should be affirmed.

The other Judges concurred.