Bank v. . Hinton , 12 N.C. 397 ( 1828 )

"And the said J. H. and S.C. B. in their own proper persons come and defend the wrong and injury which, etc., and pray judgment of the said original attachment of the said president, etc., because they say that the justice of the peace of the county, etc., who granted the said original attachment did not before granting the same, to wit, on or before, etc., take bond and security of the said president, etc., for whom the said attachment was issued, or of their attorney, or agent, or factor, or any person whatsoever, payable to them the said J. H. and S.C. B. in double the sum of which complaint is made, to wit, in the sum of, etc., besides interest, etc., for satisfying all costs which shall be awarded to them, the said J. H. and S.C. B., in case the president, etc., shall be cast in this suit, and all damages which shall be recovered against the said president, etc., in any suit or suits which may be brought against them for wrongfully suing out the said attachment, and return the said bond so taken, together with the affidavit of the said president, etc., or of their attorney, etc., subscribed by them or him, with their or his proper name, to the court of pleas, etc., to which the said original attachment was returnable, to wit, to the court of, etc., and this the said J. H. and S.C. B. are ready to verify. Wherefore, because the said original attachment has (398) been issued without bond and affidavit taken and returned as aforesaid, they the said J. H. and S.C. B. pray judgment of the original attachment, and that the same may be quashed."

To this plea the plaintiffs demurred generally, and the demurrer being overruled, the plaintiffs appealed to the Superior Court. On the last circuit his Honor, Judge Martin, at the request of the counsel on both sides, pro forma, affirmed the judgment, and the plaintiffs appealed. The attachment law introduced a mode of proceeding unknown to the common law, and may operate injuriously in cases where the defendants reside in other governments and obtain no notice of its issuing. The case, therefore, furnishes additional reasons for the application of the rule of common law that the provisions of such statutes shall be strictly pursued and be so construed as to enforce on the plaintiff a compliance with those requisites which are provided for the security of the defendant. The making affidavit and giving bond are conditions precedent to granting the attachment; and returning the bond and affidavit to court are (400) of consequence to the defendant to enable him to see how far the plaintiff has entitled himself to the attachment, and to obtain a compensation against him if it be wrongfully sued. Indeed, there is no law in the statute-book which more imperiously demands a strict construction, for the property of an absentee may be all sold upon an attachment wrongfully sued out before he is apprised of the proceeding, and if then he should discover that no bond and affidavit were taken and returned, his remedy must at best be very imperfect. I take it, therefore, that the law, having imposed on the plaintiffs the duty of giving bond and seeing that it is returned with the affidavit to court, has made these three facts one condition, on which alone the plaintiffs can issue an attachment, and I apprehend that it will appear that separating them for the purpose of pleading will lead to a construction which destroys the text of the act, and tends to the elusion of its provisions.

Upon the demurrer to the plea of abatement the plaintiff has first objected to it on the score of duplicity. The proposition is this, that it is not allowable to plead several facts, either of which, if true, would be sufficient to abate the attachment. But this is correct in this sense only, that is, when the matters pleaded are distinct and unconnected with each other. This is shown by the cases cited of the two outlawries, or the two ex-communications, that have no connection with each other, and either is sufficient to abate the action. Bac. Ab., title Abatement, P. It is shown still more decisively in the cases cited from 2 and 3 Johns., in the first of which the defendant pleaded a discharge under the act of insolvency; the plaintiff replied, setting forth all the grounds on which the discharge is made void by the act, in the words of the act. On demurrer the replication was held to be bad because the plaintiff had not specified the particular fraud on which he meant to rely. It was not necessary that all the grounds of fraud should (401) concur to avoid the discharge, for the act had given that effect to each of them severally. So in the other case, to a similar plea, the plaintiff replied three distinct and independent grounds to avoid the discharge, which would require several distinct points to be put in issue. These replications were very properly held to be defective, on account of duplicity. I have examined all the other cases cited, to which I have access, and they all proceed upon the same ground, that the facts relied upon are separate and independent of each other, and that each, if true, would form a good defense. This is a sound rule of pleading, for it would be embarrassing to have as many issues as there were facts relied upon, when the trial of one would decide the question.

But the rule is very different where the several facts pleaded have a dependence on each other, where the whole form one point or one defense. Thus it is laid down, "If a man allege several matters, the one not having any dependence on the other, the plea is accounted double; but if they be mutually depending on each other, then it is accounted as only single." Sys. of Pl., 198. So it is said that "If one plea contain divers matters in it, upon which an issue may be taken, yet this plea is not double if it could not have been good without alleging those matters in it. For although the law does not allow captious pleas, yet it will not delay the defendant to plead all such matters that the case affords for his just defense."Ibid.

I cannot understand that there is any limitation to the number of facts a man may rely upon in his plea, if they all converge to one point and may be tried upon one issue. If a man is sued upon an obligation, he may plead that he was illiterate, that it was falsely read to him, besides that it was delivered as an escrow, and the conditions not performed. All these (402) do not make his plea double, for they may be tried on one issue, non est factum. Sys. of Pl., 200. The position is confirmed and illustrated by the modern cases. Thus in Robinson v. Bayley, 1 Burr., 316, the defendant in trespass pleaded a right in common for his cattle, levant and couchant. The plaintiff replied that they were not his own commonable cattle, levant and couchant. The defendant demurred specially, because the replication was multifarious; but the court held the replication good, the rule being not that issue must be joined on a single fact, but on a single point, and that it was not necessary that this single point should consist only of a single fact. And in a case which approaches nearly to this in principle the defendant demurred to the replication, assigning for cause that the plaintiff, by the replication, had attempted to put in issue three distinct facts, the act of bankruptcy, the trading, and the petitioning creditor's debt. The court held that these three facts connected together constituted but one entire proposition, and that the replication was good. Steph. on Pl., 274. In truth, it is difficult to find a special plea that is not made up of a variety of facts, all, however, tending to and making parts of the same point of defense.

The point in controversy here is whether the plaintiff has entitled himself to the attachment. The defendant says he has not, because no bond and affidavit are taken and returned. If these facts are traversed in the replication, and are found in favor of the plaintiff, he has done all that the law required, and it will appear to the court that he is entitled to the attachment. There is no other way of showing it to the court, and a different rule of pleading would have a manifest tendency to dispense with those safeguards which the act has placed around the property of absentees. It appears to me that the defendant is clearly entitled to call on the plaintiff to show that he has done all the law requires to entitle him. (403) The consequences of a different doctrine may be of a most serious kind to defendants so situated. Suppose the defendant selects one fact, Viz., that no affidavit has been returned to court, and the plaintiff takes issue upon it, and it is found against the defendant: the jury must assess damages, and the judgment is peremptory that the plaintiff recover. Yet in such case no bond may have been filed; the attachment may have been sued out most injuriously, and the defendant's property taken from him under color of law, without the chance of redress. Let the consequences be traced, likewise, upon the supposition that the defendant relies upon the plea that no bond has been given and returned, which is found against him, although the affidavit be filed.

In whatever light I see this question, it seems to me that the taking the bond and its return with the affidavit constitute one point or qualification for the plaintiff to prosecute the attachment; that if he was sued for suing out the attachment maliciously, he would be bound to aver them, inasmuch as the act has connected them together.

As to the repugnancy, in whatever form the plea has been drawn, it is quite evident that the pleader meant to present the objection furnished by the act of 1777, that a bond had not been taken and returned; that the justice did not take a bond, and the bond which the act requires to be so taken was not returned. It is the separating the taking of a bond from the return of it that has created the apparent incongruity; for if the plea had simply stated that no bond was taken and returned, it would have been unexceptionable. Comparing the plea with the act of Assembly, no doubt can exist of the object and design of it. On the whole, we think the justice of the case may be obtained by giving the plaintiff leave to withdraw the demurrer and file the bond nunc pro tunc. If the bond and affidavit, heretofore taken,^* be not returned, the demurrer must be overruled. (404)

PER CURIAM. Let the plaintiff withdraw his demurrer and file his bond and affidavit nunc pro tunc.

Approved: Skinner v. Moore, 19 N.C. 138; Hall v. Thorburn, 61 N.C. 158;Leak v. Moorman, ib., 168; Askew v. Stephenson, ib., 288.

^* It was stated in argument, and not denied, that the plaintiffs had made affidavit and given bond, but the justice of the peace had neglected to return them.