Long v. Baker

Full title: LONG'S EXECUTORS v. BAKER

Court: Superior Court of North Carolina

Date published: Jan 1, 1800

3 N.C. 128 (N.C. Super. 1800)

Opinion

(Fall Riding, 1800.)

1. Reasons in arrest of judgment cannot be filed without permission of the court on hearing the reasons.

2. The assignment of a bond, not negotiable in law, vests the property in the assignee, and a court of law will take notice of him as owner.

3. The heir is liable in an action of debt on the bond of the ancestor, wherein the heir is named, notwithstanding there may be personal estate in the hands of the executors.

IN this case the following points were held by the Court, upon argument:

JOHNSTON, J.

1. When reasons in arrest of judgment are intended to be filed, they must first be shown to the court and the permission of the court obtained for filing them. ( Quere de hoc.)

2. This assignment made by Long, the obligee, to Hamilton, who was a subject before the Declaration of Independence, shall be taken to be a vesting of the interest in Hamilton. It is in the nature of a power of attorney irrevocable; and instances have occurred before the Revolution where courts of law have taken notice of such assignments, and have protected them against the acts of the obligee.

3. This is an action upon a bond wherein the heir is named, and it is against the heir; and now it is objected that the act of 1777, ch. 2, sec. 29, exempts the lands from execution as long as there is personal property, and that the death of the ancestor makes no alteration in this respect, and that, therefore, after his death, the lands are still not liable till the personal estate is exhausted; that the same idea is preserved in 1784, ch. 11, sec. 5, and that the preamble of 1789, ch. 39, clearly supposes the old common-law remedy by action of debt lies not for a creditor against the heir. To all this the answer is that by the common-law the action of debt lay against the heir; and there is no act of Parliament nor act of Assembly which takes away that remedy; and, therefore, it lies still. The act of George II, was not made to narrow, but to enlarge, the remedy of creditors; the act of 1777 intended to enable a debtor to save his lands by showing personal property; the act of 1784 provides for the case where creditors first sue the executors, who discharge themselves of their assets, and the preamble of the act of 1789 speaks in reference to that act.

NOTE. — Upon the last point, see Taylor v. Grace, 6 N.C. 66.

Cited: Kiff v. Weaver, 94 N.C. 278.