Opinion
August Term, 1855.
Simply advising a debtor to run away, though the advice be given to delay, c., is not equivalent to aiding and assisting, and will not sustain an action under the Statute against the fraudulent removing of debtors.
ACTION ON THE CASE for the fraudulent removal of a debtor, tried before his Honor Judge PERSON, at the Fall Term, 1854, of Caldwell Superior Court.
J. W. Woodfin, N.W. Woodfin and T. R. Caldwell, for plaintiffs.
Gaither, Guion, Bynum and Avery, for defendants.
In March, in 1849, J. O. Roberts Co., owed a debt due by note, to the plaintiffs, who were merchants, living and doing business in the city of New York. The plaintiffs had sent their note for collection to an attorney, residing in the county of Burke.
The plaintiff's attorney had made a verbal arrangement to receive from Roberts, claims on third persons, in lieu and satisfaction of this claim, but had only received such claims for a small part of the debt. At the time of the transaction, hereinafter stated, the attorney had gone from the county of Burke on a temporary journey. Roberts, at this time, was residing in the county of Burke, and had been so residing for six months.
About the 26th of March, in the year 1849, Roberts removed from the county of Burke, secretly, and fraudulently, much indebted to others living in said county, as well as to the plaintiffs. He was entirely insolvent. He had, at this time, no remunerating occupation, and no prospect of successful employment in said county.
It appeared in evidence, that shortly after he had absconded, one of the defendants, who knew of his indebtedness, said in a conversation with the above mentioned attorney, who was complaining of Roberts' course, that Roberts had been dissipating and doing no good, and that all his friends thought it was best for him and his creditors, that he should go to California and acquire the means of paying his debts, and remarked, "if you had been here, and seen how he was doing, you would have advised that course too".
Upon this the plaintiffs counsel insisted that he had made out a case under the Statute, and called upon the Court so to charge.
But his Honor refused to give such instructions, and charged that "merely advising Roberts to go, although with the intent to delay, hinder or defraud his creditors, was not sufficient to make the defendants liable under the Statute. To which plaintiffs counsel excepted. The verdict was returned for the defendants.
There was another exception to the charge of the Court, upon the question, whether the plaintiffs were creditors in the county of Burke? which, not being considered by this Court, need not be further noticed. Judgment for the defendants, and appeal.
The only point presented to us, is upon the exception to the charge. His Honor held, merely advising a debtor to leave the county, although with an intent to delay, hinder or defraud his creditors, did not make the defendant liable under the Statute. The words of the Statute are, "if any person shall remove, or shall aid, or assist in removing, any debtor out of the county in which he shall have resided for six months, with an intent by such removing, aiding, or assisting to delay, hinder, or defraud his creditors, c." The question is, does advising a debtor to remove out of the county, come within the meaning of the Statute, if the advice is given with an intent, that by such removal, his creditors are to be delayed, c.? In other words, I know that A. is much indebted, and say to him, "you can do no good for yourself or any body else by staying here, were I in your place, I should leave the county and go some where else, although my creditors should be thereby delayed, c., and could not have their writs executed, so as to take judgments upon the ordinary process:" in plain language, "were I in your place, I would run away, and let my creditors take care of themselves," do I thereby aid or assist A. in running out of the county?
Most persons are willing to give advice: some do it officiously; but if called on to give aid or assistance, the subject is looked at in a different point of view. Advice costs nothing: it is but words. Aid or assistance, is the doing of some act whereby the party is enabled, or it is made easier for him, to do the principal act, or effect some primary purpose. If a debtor's object be to remove out of the county, and I let him have my horse, or carry him, or his family, or his property some distance on the way to the county line, in my wagon, so as to make his removal the more easy, it is settled that this is giving aid and assistance. We suppose letting a debtor have money, whereby to enable him to hire a horse, or a wagon for these purposes, would amount to the same thing. But we have never before heard it suggested, that mere words of advice, no matter with what intent they are used, can amount to giving aid or assistance in removing out of the county, within the meaning of this Statute, by which a third person is made liable to the creditor, not only for the damage which he actually sustains, but for the whole debt, without reference to the amount of the damage.
In the absence of any direct authority, the plaintiffs' counsel referred to the doctrine of accessories in criminal cases; according to which, one who advises the commission of a crime, is liable as an accessory before the fact. The analogy does not support the position, in aid of which it was referred to; on the contrary, it tends to prove that mere advice is not embraced by the words `aid and assist:' for the averment in regard to accessories is, " did then and there advise, counsel, abet, aid and assist;" and as the Statute uses only the last two words, the inference from analogy is, that the operation of the Statute was not intended to be extended to all whom the rule of the common law made liable as accessories before the fact: for if so, the formula as well as the final words of averment would have been used.
In regard to the question reserved, whether the plaintiffs could, under the circumstances, maintain the action within the meaning of the words, "shall be liable to pay all debts which the debtor may justly owe in the county from which he is so removed," we are not at liberty to give an opinion, as a verdict in favor of the defendants on the first point, there being no error in the charge, puts an end to the case.
PER CURIAM. Judgment affirmed.